THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


REPORTS 


OF 


CASES 


ADJUDGED  IN  THE 


<: 


SUPREME  COURT 


OF 


PENNSYLVANFA. 


BY  HORACE  BINNEY. 


VOL.  I 


•.' .  \ 


PHILADELPHIA: 
f UHLlSUKn  «Y  WILLIAM  I'   1  AIHIAND  AXl)  W 

1809. 


District  of  Pennsylvania,  to  m  it: 
«***««*         BE  IT  l?EMEAfREREU,  That  on  tlic  sc\enteenth 
*SEAL.*   ''•'>'  ot  Uecembcr,  in  tlie  tliirtv-third  year  of  the  inde- 
»  *   neiidence  of  the  United  States  of  America,  A.  D.  1808, 

Horace  Minney,  of  the  said  district,  hath  deposited  in  tins 
office  the  title  of.  a  book  the  right  whereot  he  claims  as  author,  in 
the  words  following,  to  wit: 

"  Reports  of  Cases  adjudged  in  the  Supreme  Court  of  Pennsyl- 
vania.  By  Horace  Binney.   Vol.  I." 

In  conformity  to  the  act  of  the  congress  of  the  United  States,  in- 
tituled "  An  act  for  the  encouragement  of  learning,  by  securing  the 
copies  of  maps,  charts,  and  books,  to  the  authors  and  proprietors  of 
such  copies  during  the  times  therein  mentioned."  And  also  to  the 
act,  entitled  "An  act  supplementary  to  an  act  entitled  'An  act  for  the 
encouragement  of  learning,  by  securing  the  copies  of  maps,  charts, 
and  books,  to  the  authors  and  proprietors  of  such  copies  duri:ig  the 
times  tlierein  mentioned,'  and  extending  the  benefits  thereof  to  the 
arts  of  designing,  engraving  and  etching  historical  and  other  prints." 

D.  CALDWELL, 
Clerk  of  the  District  of  Pennsylvania 


IVv  and  Kammerer,  Printers. 


■(    AUG  1^   iS9e 


PREFACE. 


T  TPON  submitting  to  the  public  the  following  Re- 
ports, the  author  feels  the  necessity  of  making 
some  apology  for  having  adopted  a  form  of  publication 
which  implies  a  series  of  recent  cases,  while  not  a  few 
in  the  first  number  are  of  rather  a  remote  date.  It  was 
his  design,  formed  several  years  since,  to  note  the  argu- 
ments and  decisions  in  the  Supreme  Court  of  this  State; 
not  with  any  fixed  view  to  publication,  but  principally 
to  inform  himself  upon  points  of  law  which  are  of  local 
concern,  and  which  are  to  be  found  no  where  so  well 
illustrated  as  in  the  arguments  of  gentlemen  experienced 
at  the  bar.  But  limited  as  this  design  was,  it  suffered 
such  material  interruption,  that  the  fruits  of  the  atten- 
tcntion  bestowed,  however  valuable  in  kind,  were  very 
inconsiderable  in  (juantity;  so  that  when  in  the  course  of 
the  past  year,  the  plan  of  publishing  in  numbers  the 
future  decisions  of  this  Court,  was  adopted  upon  the 
suggestion  of  his  friends,  the  amount  in  his  possession 
was  altogether  too  small  to  claim  any  consideration  by 
itself.  Most  of  the  cases,  at  the  same  time,  involved 
questions  of  so  much  interest  to  the  Bar  of  Penn- 
sylvania, and  had  been  so  frerjuently  the  object  of 
reference  while  in  manuscript,  thnt  it  wns  thought  bet- 


IV  PREFACE. 

ter  to  interfere  a  little  with  the  unity  of  the  plan,  than  to 
keep  them  baek;  they  are  therefore  to  be  found  in  ihe  tirst 
of  the  two  numbers  now  published,  which,  with  the  addi- 
tion of  a  third  of  equal  amount,  will  form  a  volume  of 
convenient  size.  How  frequent  the  publication  of  these 
numbers  will  be,  must  depend  essentially  upon  the  situ- 
ation of  the  court;  but  the  author's  access  to  the  notes 
and  opinions  of  the  judges  is  upon  a  footing  of  so  much 
facility  to  himself,  that  it  is  probable  he  shall  persevere 
in  the  collection,  full  as  long  as  he  shall  be  able  to 
persuade  himself  that  he  renders  any  service  to  his 
profession. 

To  indulge  in  merely  the  common  phrase  of  gratitude 
for  the  kindness  of  Chief  Justice  Tilghman  in  aiding 
thus  far  the  execution  of  these  Reports,  would  lead  to  a 
very  erroneous  estimate  of  its  amount.  For  a  consi- 
derable number  of  cases,  those  in  particular  decided  in 
^  the  Western  and  Middle  Districts,  the  reporter  is  in- 

debted to  him  not  only  for  the  opinions  of  the  Court, 
but  for  a  statement  of  the  facts  and  points,  for  a  note  of 
the  arguments,  and  indeed  for  every  thing  but  the  dress 
in  which  the  reports  appear.  To  be  more  particular 
would  probably  oiFtnd  the  delicacy  of  a  mind  which  has 
acted  solely  from  the  impulse  of  benevolence,  iuid  which 
perhaps  would  have  been  better  pleased  by  the  with- 
holding of  even  this  general  acknowledgment. 

The  reporter  at  the  same  time  confesses  with  great 
sensibility  the  courtesy  of  the  Judges  of  the  Sui)reme 
Court,  "whose  opinions  have  always  been  at  his  service 
to  transcribe,  and  the  notes  of  one  of  whom,  Mr.  Justice 
Smith,  have  enabled  him  more  than  once  to  supply  a 
chasm,  or  to  detect  an  inaccuracv  in  his  own. 


PREFACE. 

To  the  gentlemen  of  the  Bar  he  probably  owes  an 
apology  for  his  imperfect  report  of  their  arguments;  at 
the  same  time  he  trusts  that  he  is  not  chargeable  in  this 
particular  with  any  very  serious  mistatements.  As  the 
merit  of  accuracy  is  undoubtedly  the  highest  to  which  a 
reporter  should  aspire,  he  must  feel  in  the  present  in- 
stance a  sensible  disappointment,  if  he  is  not  found  in 
some  measure  to  have  attained  the  point  to  which  his 
eye  has  been  constantly  directed.  He  however  stands 
so  much  in  need  of  pardon  for  failure  in  every  depart- 
ment, that  he  is  perhaps  indiscreet  in  not  throwing  the 
whole  upon  the  liberality  of  the  profession,  any  doubt 
of  which  has  certainly  not  led  to  these  few  lines  of 
preface. 

December  isos 


JUDGES 


OF  THE 


SUPREME  COURT  OF  PENNSYLVANIA. 


EDWARD  SHIPPEX  Escj.       Chief  Justice.    Appointed    December    18,    1799. 
WILLIAM  TILGHM AN  Esq.  Cliief  Justice.    Appointed    February     2G,    18O0, 

in  the  place  of  Cliief  Justice  Shippen,  resigned. 


JASPER  YEATES  Esq.  "J  f  March  21,       1791. 

THOMAS  SMITH  Esq.  (.Judges.   Appointed  J  January  31,     1794. 

HUGH  H.  BRACKENRIDGE  Esq.  J  (^  December  1%,  1799 


ATTORNEY  GENERAL. 

JARED  INGERSOLL  Esq.   Appointed  August  2'2,  1791. 

JOSEPHB.  M'KEAN  Esq.  Appointed    May    10,1800,    in    the  place  of  Jarcd 

ingcisoll  Esq.  resigned 


TABLE  OF  THE  CASES 


The  Cases  in  Italics  are  cited  from  MSS. 


AlBERTY,  Dawson  r.      -  105 

Reinholclt  v.      -  469 

Ammons,  Simpson's  Lessee  v.  175 

B 

Backhouse,  Jenk's  Lessee  v.     -  91 

Bailey,  Watson's  Lessee  u.  470 

Baker,  Wallace  v.         -         -  610 

Baker's  case,         ...  462 

Bank  U.  S.,  Cramond  v.         •  64 

Levy  V.           -  27 

Bamet,  Yohe  v.           -         -  358 

Barry,  Crawlord  v.          -         -  481 

Beauvarlet,  Petry  v.            -  97 

Beattie,  Roberta''  I.e-sace  v.  440 

Bell  V.  Bevcridgc^          -          -  52 

Benner  v.  Frey,          -           -  366 

Bcrquier,  Desesbats  v.          -  336 

Bcrthon  v.  Kcele\',      -          -  502 

Beveridge,  Bell  v.          -          -  52 

Birch,  McMillan  I.'.        -          -  178 

Black,  Boggs  V.          -         '  333 

Boggs  V.  Black,           -          -  32P. 

Boileau,  Vansant  v.       -          -  444 

Boyer,  Commonwealth  v.       •  201 

Brown  -c.  Oirard,         -          -  40 

Rowley  v.          -          -  61 

V.  Van/iorncy       -         -  334 

Buchanan's  Lessee  v.  Maclure,  385 

Buckxvalttr,  Hamilton  v.          -  5  72 

Bull,  Sterrett  v.          -          -  234 

Sterrett  v.            -          -  238 

Rurnes,  Woglam  v-          -  109 
Vol.  L 


Calbraith  v.  Grade, 

Calhoun  v.  Insm*ance  Company 
of  Pennsylvania, 

Canal  Company  v.  Sansom 

Canhy  v.  Ridgwav, 

CecWs  Leasee  v.  Korbman, 

Chaffant,  Johnson  v. 

Champnevs  v.  Lisle, 

Cochran,  Commonwealth  v. 

Patterson's  Lessee  v. 

Commonwealth  v.  Boyer, 

V.  Cochran, 
V.  Davies,     - 
V.  Douglass, 
V.  Diuinc, 
V.  Duane, 
V.  Messinger, 
V.  North, 
V.  Pascalis, 
TurnbuU  v. 

Cox\  yenninifa  v. 

Coxe,  Garrigues  v.  -  - 

Cramond  v.  Bank  U.  S. 

Crawford  v.  Barry, 

Croxall's  case, 

Cutshall,  Ross's  Lessee  v. 

D 

Dallas,  Woods  v. 
DavieSi  Commonwealth  v. 
l)aws(m  V.  Alhertv, 
Deljcnnevllle  v.  Dchenncville, 
Delaware  Insurance  Company  v. 
Gilpin,  .  .  - 

I) 


296 

293 

70 

496 

134 

75 

327 

324 

231 

201 

324 

97 

77 

98 

601 

273 

97 

37 

45 

588 

592 

64 

481 

589 

399 

146 
97 

105 
46 

501 


lABLK  Or  THE  CASES. 


Drmpsc!/  V.  Insurance  Company 

of  Pcnnsijlvanid,  -  -      300 

Dcscsbats  I',  litrquicr,  -  336 

Dilworth's  Lessee  v.  Sinderling,  488 
Douglass,  Commonwealth  v.  77 

Drum  V.  Snydor,         -  -  381 

Duane^  Commomvealth  v.  -       98 

Commonwealth  y.  601 

Morris  v.  -         -  90 

Duhosq  V.  Guardians  of  the  Poor,415 
Dunwoody's  Admrs.  Ruston,  v.    42 


Ebert  u.  Wood,         -          ••  216 

Eckhart,  Syler's  Lessee  t;.  378 

Eckart,  Crasser  v.          -  -       575 

Eddy's  Lessee,  Faulkner  v.  188 

Elder,  Summcrl  v,         -  -      106 

Emerick  v.  Harris,     -          -  416 

Evans,  Webb  v.           -          -  565 

Ewing  V.  Tees,          -          -  450 


Faulkner  v.  Eddy's  Lessee,  188 

Folwell,  Smith's  Lessee  v.  546 

Fortune,  Harris  v.  -  -  166 

Fox  V.  Wilcocks,         -         -  194 

Franklin,  Wilt  v.         -         -  502 

Frazer's  Lessee  v.  Hallowell,  126 

Frazer  v.  Tunis,         -  -  254 

Frey,  Benner  v.  -         -  366 


Gallngher''s  Executors  ^Spajf or  d  v. 590 

Garrigues  v.  Coxc,          -         -  592 

Sparkes  v.  -  152 
Gibson  v.  Insurance  Companj'^of 

Philadelphia,            -         -  405 

Gilchrist  v.  Ward^  •  -  41 
Gilpin   V.    Delawai-e    Insurance 

Company,          -          -          -  501 

Giravd,  Brown  v.          -         -  40 

Godshall  v.  Mariam            -  352 

Gorgas,  Livezey  t).  -  -  251 
Gourdon  v.  Insurance  Companij 

of  North  America^             -  430 

Grade,  Calbraith  v.               -  296 

Graham  v.  Hamilton,         -  461 


Crasser  v.  Eckart,                    -  575 

Gratz  V.  Phillips,         -         -  588 

Ciregory,  Kennedy  v.            -  85 

Griffith' "y.  Ogle,   '      -          -  172 

Grubby  M'-Cidlough  v.           -  57 Z 
(iuardiansoi'thePoor, Dubosqu.  415 

Cnietner,  rvI^Cullough  v.          -  214 

Guicr  V.  0' Daniel,          -         -  349 

H 

Hallowell,  Frazer's  Lessee  v.  126 

Hamilton  v.  Bucktvalter,  572 

Hamilton,  Graham  v.         -  461 

liar  kins  ^  Tracy  v.          -          -  395 

Harris,  Emerick  v.         -         -  416 

V.  Fortune,     -         -  125 

Hartman  v.  Weiser,              -  253 

Hartzell  v.  Reiss,          -          -  289 

Hazard  v.  Israel,        -         -  2-iO 

Hazard's  Lessee  v.  Lowry,  166 

Hecker  v.  Jarrett,         -          -  3/'4 

Heiser,  Hughes  v.       -         .  463 

Henry  v.  Kennedy,              -  458 

Hicks,  Pemberton's  Lessee  v.  1 

Hill's  Lessee  v.  West,          -  486 

Hoar  V.  Mulvey,         -          -  145 

Hodgson's  Lessee  v.  Shcrer,  535 

Hoffman,  Snyder's  Lessee  v.  43 

Holloway,  Pigott  v.        -          -  436 

Hughes  V.  Heiser,         -          -  463 

Nurst\s'  Lessee  v.  Kirkbride,  616 

Hutcheson  v.  Johnson,           -  59 


Ingersoll,  Woods  v.  -  146 

Ins.  Co.  N.  A.,  Watson  "o.  47 

Gourdon  v.  430 

Jones  V.  -        38 

Rousset  V.  429 

Ins.  Co.  Pennsylvaniat;.  Ketland,  499 

Calhoun  u.  293 
Dempseyv. 300 
Ins.  Co.  Philadelphia,  Gibson  v.  405 
Israel,  Hazard  v.         -         .         240 
Jarrett,  Hecker  v.  -         -        374 

Jenks'  Lessee  v.  Backhouse,  91 

yenning-sv.  Cox,  -  -  588 

Johnson,  Ozeas  v,         -         -       191 


TABLE  OF  THE  CASES. 


XI 


Johnson  v.  ChafFant,           -  75 

Hutchtson  V,          -  59 
Jones  I'.  Insurance  Company  of 

North  America,          -          -  38 

Jordan  v.  Prleredith,             -  27 

K 

Keeley,  Berthon  v.              -  502 

Kennedy  i;.  Gregory,            -  85 

V.  Lowry         -         -  393 

Henry  v.          -          -  458 

Keppele,  Lang  v.          -          -  123 
Ketland,  Insurance  Company  of 

Pennsylvania  v.          -         -  499 

Kethnd  V.  Medford,           -  497 

Kin'zcr,  Shaffer  v.          -          -  5^7 

Kirkbride^  Hurst's  Lessee  v.  616 

Korbman^  CecWs  Lessee  v.  1 34 

Kyle's  Lessee  v.  White,      -  246 


Lang  V.  Keppele,          -          -  123 

Lane  V.  Schreiner,            -  292 

Latimer  v.  Kidge,       -          -  458 
I..evyy.  Bank  of  the  United  States,  27 

I-isle,  Champneys  v.            -  327 

Livezey  v.  Gorgas,       -          -  251 

Lower  Dublin  School  v.  Paul,  59 

Lowry,  Kennedy  f  •            -  393 

Hazard's  Lessee  v.  166 

M 

M'-Culloitgh^Grubb  V.            -  573 

V.  (iuetner,          -  214 

Miles  V.            -  77 

V.  Young           -  63 

M'Kean  v.  Shannon            -  370 

M'Laughlin  V.  Scot,             -  61 

M'Millan  v.  Birch,         -          -  178 

M'Rhea's  Lessee  v.  Plummer,  227 

Maclure,  Buchanan's  Lessee  v.  385 

Mannhardt  v.  Soderstrom,  138 

Mariam,  Godshall  v.             -  352 

Medford,  Ketland  v.           -  497 

Mererlith,  Jordan  v.             -  27 

Messinger,  Commonwealth  v.  273 

Miles  V.  M'CulIough,           -  77 

Mitchell  V.  Smith,         -          -  IJO 


Moore  v.  Wait, 
Morris  v.  DiianCy 
Mulvey,  Hoar  v. 
Murray  v.  Wilson 
Myers  v.  Urich, 

N 

Neff's  Lessee  v.  Neff, 
North,  Commonwealth  v. 

O 

G* Daniel^  Gider  v. 
Ogle,  Griffith  v. 
Ozeas  V.  Johnson, 


219 
90 

145 

531 

25 


350 
97 


349 
172 
191 


Pascalis,  Commonwealth  v.  37 

Patterson's  Lessee  v.  Cochran,  231 

Paul,  Lower  Dublin  School  v,  59 

Pemberton's  Lessee  v.  Hicks,  1 

Petry  v.  Beauvarlet,       -          -  97 

Phillips,  Gratz  v.        -         -  588 

Pigott  V.  Holloway          -          -  436 

Plummer,  M'Rhea's  Lessee  v.  227 

Porter,  Smith  v.          -         -  209 

Q 

Quigley,  Shortz  v.         -         - 

R 

Ramsay,  Scott  v.         -         - 

Reinholdt  v.  Alberty, 

Reiss,  Hartzell  v.         -         - 

Ridge,  Latimer  v.       - 

Ridgway,  Canbyu. 

Roberts^  Lessee  v.  Bcattif^ 

Ross's  Lessee  v.  Cutshall, 

Rousset  V.  Insurance  Company 
of  North  America, 

Rowley  v.  Brown, 

Kugan  V.  Wi-st, 

Ruston  V.  Dunw'nody's  Admi- 
nistrators, 

S 

Sansom,  Canal  Company  v. 
Schreiner,  Lane  v.      - 
Scot,  M'J^aughlin  v. 


222 


221 
469 
289 
458 
496 
440 
399 

429 
61 

263 

42 


70 
292 

63 


xn 


TABLE  or  THE  CASES. 


Scott  r.  Ramsay,         -          -  221 

Shaffer  v.  Kintzer,              -  5^7 

Shannon,  M'Kean  u.           -  370 

Sherer  v.  Hodgson,          -  5o5 

Shortz  V.  Quigley,          -          -  222 

Simpson's  Lessee  v.  Amnions,  175 

Sinderling,  Dilworth's  Lessee  v.  488 

Smith's  Lessee  v.  Folwell,  546 

Smith,  Mitchell  y.          -          -  110 

V.  Porter,          -          -  209 

Snyder,  Drum  v.         -         -  381 

Snyder's  Lessee  v.  Hoffman,  43 

Soderstrom,  Mannhardt  v.  138 
Spafford  v.  Gallagher'' s Executors^590 

Sparks  v.  Garrigucs,           -  152 

Sterrett  v.  Bull,         -            -  234 

V.  Bull,          -           -  238 
Stexvart''s  Executors^  Wootering  v.22 1 

Summerl  v.  Elder,          -          -  106 

Syler's  Lessee  v.  Eckart,  378 


Tees,  Ewing  v. 

Tracy  v.  Harkins., 

T  unis,  Frazer  v. 

TurnbuU  %\  Commonwealth, 


U 


Urich,  Myers  v. 


450 
395 
254 

45 


Vanhorne,  Broivn  v.            -  334 

Vanlear  v.  Vanlear,         -         -  76 

Vanlcar  v.  Vanlear^              -  447 

Vansant  v.  Boileau,              -  444 

W 

Wait,  Moore  v.          -         -  219 

Wallace  v.  Baker,         -         -  610 

Warcl^  Gilchrist  v.          -         -  41 
Watson  V.  Insurance  Company 

of  North  America,           -  47 

Watson's  Lessee  v.  Bailey,  470 

Webb  V.  Evans,         -         -  565 

JVehcr^  Hartman  v.               -  253 

West,  Hill's  Lessee  v.         -  486 

Kugan  u.          -          -  263 

White,  Kyle's  Lessee  v.       -  246 

Wilcocks,  Fox  v.         -         -  194 

Wilson,  Murray  u.          -          -  531 

Wilt  V.  Franklin,         -         -  502 

Woglam  V.  Burnes,          -  109 

Woods  V.  IngersoU,             -  146 

Wood,  Ebert  u.           -          -  216 
Wootering  v.  Stewart* sExecutors^  221 


Yohe  V.  Barnet, 
Young,  M'Cullough  v. 


358 


ERRATA. 

Page  212,  line  7,  for  "is  not  allowed"  read  "ought  not." 

In  a  few  of  the  copies  the  first  two  lines  on  page  347  should 
have  been  inserted  immediately  before  the  last  line  on 
page  348. 

Page  349,  line  5,  for  "ed"  read  "carried." 


CASES 


IN  THE 


SUPREME  COURT 


OF 


PENNSYLVANIA. 


Tb    T     Lessee  oFPemberton  and  others  a^ai?ist  Hicks. 

9sj368j_  O 

CASE  stated,  to  be  considered  in  the  nature  of  a  special     1799. 
verdict. 


Monday, 
December 
^^  Joseph  Gallffwaij  intermarried  with  Grace  Groxvdon^  by  23. 

''  whom  he  had  issue  bom  alive  (and  still  remaining  alive)  be- The  curtesy 

'  fore  the  death  of  Lawrence  Groxvdon  father  of  the  said  Grace;  husband  in"^ 

'  which  said  Lawrence  being  seised  in  fee  simple  of  the  premi-^l'e  lands  of 

'  ses  in  the  declaration  mentioned,  by  his  testament  and  last  „(,j  forfeited 

'  will  duly  executed  devised  the  same  with  otlier  real  estate  *f> 'he  com- 

'  to  the  said  Grace  Galloxvay  and  a  certain  Elizabeth  iV/c//c/- Cj,.^),^);,^  ^^^ 

'  son  his  two  daucrhters,  in  fee.  Thomas  Nicholson  the  husband  '•>*'  luisljaud 

'  of  the  said  Elizabeth,  and  Joseph  Galloxvay  and  Grace  his  laindci"  for 

'  wife,  in  due  form  of  law  made  partition  by  writ  of  the  premi-  truabon  <om- 

'  ses  to  them  devised  as  aforesaid,  in  which  said  partition  the  i,^,',,  lititjme 

'  premises  in  the  declaration  mentioned  were  allotted  with  other  ;>"<'  after  is- 

'  real  estate  to  the  said  Grace  Galloway,  and  the  an'id  jfosephGal-  i,„t  tlic 

'  loway  in  right  of  the  said  Grace  took  the  exclusive  possession  wifi;'s  estate 

'thereof  under  the  said  allotment  on  the  24th  of  December, ^^^ll^.^^l^l^^ 

'  A.  D.  1773.  The  said  Joseph  Galloxvay  afterMards  by  act  of  curtesy 

'  Assembly  passed  on  the  Gth  of  March  1778  was  required  to 

'  surrender  himself  under  pain  of  being  attainted  of  high  trea- 

'  son.  The  said  Joseph  Galloxvay  did  not  surrender  himself 

Vol.  I.  A 


2  CASES  IN  THE  SUPREME  COURT 

1 799.      '"  accordingly,  and  thereupon  became  and  stood  attainted  of 

T  "high  treason  to  all  intents  and  purposes  and  his  estate  for- 

of        "  feited  to  the  commonwealth,  the  said  Grace  Gallowatj  being  in 

Pember-  "  full  life.  The  said  premises  were  afterwards  seized  and  sold 

iON        u  jjy  ^]je  agents  for  forfeited  estates,  and  the  same  conveyed  to 

Hicks.     "  ^^o^e  under  whom  the  defendants  hold,  by  the   common- 

"  wealth.  I'he  said  Joseph  Gallo-waij  so  being  attainted  depart- 

*'  ed  out  of  the  United  States  into  parts  beyond  sea  and  there 

"  continues  in  full  life.  The  said  Grace  Galloxvay  continued  in 

"  the  United  States,  and  afterwards,  to  wit  on  the  6th  Fcbruanj 

*'  1 782,  died  seised  in  fee  simple  of  the  premises  in  the  declara- 

**  tion  mentioned,  having  first,  to  wit  on  the  20th  of  December 

"  1781,  duly  made  and  published  her  last  will  in  writing  where- 

"  by  she  devised  the  same  to  Oxven  yones  and  others,  the  sur- 

"  vivors  of  whom  are  the  lessors  of  the  plaintiff.  The  plaintiff 

"  entered  and  was  ousted  by  the  defendant.  UpcHi  these  facts  the 

"  question  submitted  to  the  court  is  whether  the  law  be  with  the 

"  plaintiff.  If  it  is,  judgment  to  be  entered  for  him  with  six 

"  pence  damages  and  six  pence  costs;  if  it  is  not,  judgment  to 

*•'  be  entered  for  the  defendant." 

The  point  to  which  the  arguments  were  directed,  was  whe- 
ther Joseph  Gallorvai/^  who  was  tenant  by  the  curtesy  initiate 
of  the  premises,  had  such  an  estate  therein  as  was  forfeited  to 
the  commonwealth  upon  his  attainder  by  act  of  Assembly  passed 
the  6th  March  1778;  the  5th  section  of  which  is  as  follows: 
*•*  All  and  every  the  lands,  tenements,  hereditaments,  debts  or 
*'  sums  of  money,  or  goods  or  chattels  whatsoever,  and  gene- 
"  rally  the  estates  real  and  personal  of  what  nature  or  kind 
"  soever  they  be,  within  this  state,  whereof  the  aforesaid  Joseph 
"  Galloxvay  &c.  shall  hnvchetn  possessed  oJ\intei-ested  in,  or  en- 
"  titled  unto,  on  the  4th  day  of  July  1776,  or  at  any  time  after- 
*'  wards  in  their  orvn  right  or  to  their  use,  or  which  any  other 
*'  person  or  persons  shall  have  been  possessed  of  interested  in 
"  or  entitled  unto  to  the  use  of  or  in  trust  for  them  or  any  of 
"  them,  shall  according  to  the  respective  estates  and  interests 
"  which  the  persons  aforesaid  or  any  in  trust  for  them  or  any 
"  of  them  shall  have  had  therein,  stand  and  be  forfeited  to  this 
"  state."  1  St.  Laws  752.  The  case  therefore  embraced  not  only 
the  proposition  whether  upon  general  principles  an  estate  of  te- 
nant by  the  curtesy  initiate  is  forfeited  to  the  commonwealth  by 


OF  PENNSYLVANIA.  ;} 

an  attainder  for  treason,  but  also  whether  it  was  not  made  for-     iT'go. 

feitable  even  against  general  principles,  by  this  act  of  assembly.     ~         ■"* 

At  March  term  ir98  it  was  argued  before  all  the  judges  by         of 

E,  Tilghman  for  the  plaintiff,  and  by  Dallas  for  the  defendant;  PembeR' 

and  again  at  December  term  1798  by  i-eww  for  the  plaintiff,       '^°''' 

and  by  Iiip-ersoll  for  the  defendant.  „ 

•^      "^  HrcKs-. 

For  the  plaintiff.  A  consideration  of  the  case  under  three 
points  of  view  will  present  the  main  question  in  such  a  manner 
as  to  shew  clearly  that  the  law  is  with  the  plaintiff.  1.  What 
was  Galloivay^s  estate  before  issue  ?  2.  What  was  it  after  issue  ? 
3.  How  does  the  forfeiture  operate  after  issue  ? 

1.  By  the  marriage  the  husband  becomes  seised  in  right 
of  his  wife  of  her  inheritance,  and  is  entitled  to  the  rents 
and  profits  during  coverture,  to  his  own  use.  This  is  an 
unconditional  consummate  right  vested  in  him  eo  instanti  of 
the  marriage,  and  upon  his  attainder  the  king  shall  take  the 
rents  and  profits  as  forfeited  during  the  coverture.  1  II.  H.  P.. 
C.  251.  253.  But  the  marriage  itself  does  not  give  the  husband 
a  freehold,  nor  can  he  declare  in  covenant  that  he  is  seised  in 
his  demesne  as  of  freehold  in  right  of  his  wife;  he  must  declare 
on  a  seisin  in  fee  in  himself  and  his  wife  in  right  of  his  wife, 
otherwise  it  is  bad.  Polyblank  v.  Haxukins.  (a)  The  fee  and  the 
frank  tenement  therefore  remain  in  the  wife  undivcsted  by  the 
marriage,  and  neither  of  them  is  forfeited  by  the  attainder  of 
the  husband.  Co.  Litt.  351. 

2.  Upon  the  birth  of  issue  a  new  consideration  in  law  takes 
place ;  and  in  as  much  as  by  the  law  of  nature  he  is  bound  to 
support  this  issue,  the  law  of  England  gives  him  a  title  to  have 
an  estate  for  his  life  in  the  inheritance  of  his  wife  if  he  ahall  sur- 
vive her.  The  estate  however  is  not  actually  imparted  to  him  ; 
it  is  both  eventual  and  conditional ;  and  the  freehold  is  not 
taken  from  the  wife  and  vested  in  the  husband  tmless  and  tintil 
he  shall  happen  to  sui-vive  her.  He  has  a  title,  but  no  estate. 
A  title  is  the  means  or  cause  by  which  a  man  has  the  just  pos- 
session of  his  property-.  2  Bl.  Com,  195.  A  man  is  entitled  to  the 
estate  by  feoffment,  but  lie  has  no  estate  before  livery.  He  has 
also  a  title  to  take  an  estate  upon  a  condition  precedent,  but  he 
ha"?  neither  the  estate  nor  the  right  to  the  land  until  the  cpndi- 

{■«)  Doug.  315. 


V. 

Hicks. 


4  CASES  IN  THE  SUPREME  COURT 

1799,      tion  is  performed.  So  the  husband  has  a  title  or  the  means  con 

"""t  fcrred  by  law  of  taking  the  estate  by  the  curtesy  upon  the  con- 

Qf         ditions  that  his  wife  be  seised  in  deed  as  well  as  in  law,  that  the 

Pember-  seisin  be  of  an  estate  to  which  the  issue  between  them  is  inhe- 

TON       ri table,  that  he  have  issue  by  her,  and  that  he  survive  her, 

otherwise  not.  Co.  Litt.  30.  a.  and  sec.  52.       %I0^ 

Littleton  in  his  definition  of  a  tenancy  by  the  curtesy,  sec. 
55.  expressly  refers  the  estate  and  seisin  of  the  husband  to 
the  happening  of  the  last  conditional  event.  "  If  the  -wife  dieth, 
*'  the  husband  shall  have  the  land  during  his  life."  And  in  sec. 
90.  he  calls  it  a  title  only  in  the  husband  to  have  the  tenements 
"  if  he  survive  the  wife."  "  Tenant  by  the  curtesy  is  he  who 
"  after  his  wife's  death  (having  had  issue  by  her  inheritable)  is 
"  introduced  into  her  inheritance  and  has  an  estate  for  life 
«  therein."  2  Bac.  Abr.  218.  Doc.  and  Stud.  lib.  I.  c.27. 

But  the  estate  is  said  to  have  a  beginning  after  issue,  which 
is  respected  in  law  for  divers  purposes;  these  purposes  how- 
ever as  enumerated  by  Lord  Coke  fully  prove  that  the  husband 
has  no  seisin  of  the  land  either  in  law  or  in  deed  in  his  own  right 
until  the  death  of  his  wife. 

First.  After  issue  had  the  husband  shall  do  homage  alone. 
The  reason  for  this  appears  in  Co.  Litt.  sec.  90.  "  None  shall 
"  do  homage  but  such  as  have  an  estate  in  fee  simple  or  fee  tail 
"  in  his  own  right  or  in  right  of  another.  For  it  is  a  maxim  in 
"  law  that  he  that  hath  an  estate  for  his  own  life  shall  neither 
"  do  homage  or  take  homage.  For  if  a  woman  hath  lands  in  fee 
"  simple  or  fee  tail  which  she  holdeth  of  her  lord  by  homage, 
"  and  taketh  husband  and  hath  issue,  the  husband  shall  do 
"  homage,  because  he  hath  title  to  have  the  tenements  by  the 
"  curtesy  of  England  if  he  survive  his  wife.  But  if  the  wife  dies 
*'  before  homage  done  in  the  life  of  the  wife,  and  he  holdeth 
"  himself  in  as  tenant  by  the  curtesy,  then  he  shall  not  do 
*'  homage,  because  he  then  hath  an  estate  but  for  term  of  his 
"  own  life."  The  reason  of  his  doing  homage  alone  for  the  fee, 
is  that  he  has  a  title  to  the  curtesy  if  he  survive  his  xvife^  for  if 
he  had  an  estate  for  his  own  life  at  that  time,  homage  would  not 
be  due  for  it. 

Second.  If  after  issue  the  husband  makes  a  feoffment  in  fee, 
and  the  wife  dies,  the  feoffee  shall  hold  it  during  the  life  of  the 
husband,  and  the  heir  of  the  wife  shall  not  during  that  time  re- 
cover it  in  a  "  sur  cuiin  vi^a."  Now  the  reason  of  the  case  de- 


OF  PENNSYLVANIA.  j 

monstrates  that  the  husband  had  no  estate  by  the  curtesy  vested      j  799, 
in  him  at  the  time  of  the  feoffment;  for  if  he  had,  the  feoffment — Z 
would  have  worked  a  forfeiture,  and  the  land  might  have  been         ^f 
recovered  against  the  feoffee.  Co.  Litt.  251.  a.  b.  252.  a.  333.  b.   Pember- 

Third.  Tenant  by  the  curtesy  cannot  claim  by  a  devise  and  "^"^ 
waive  his  curtesy,  because  by  29  E.  3.  fo.  27.  the  freehold  u^* 
commenced  in  him  before  the  devise  for  term  of  his  life.  The 
reason  of  this  is,  not  because  he  had  the  freehold  in  him,  but 
because  the  title  to  it  commenced  before  the  devise.  For  the  law, 
where  a  man  has  two  titles  to  take  an  estate,  will  adjudge  him 
in  by  force  of  the  elder,  and  will  not  permit  him  to  claim  by  the 
latter  title.  Litt.  sec.  659. 

After  issue  therefore  the  husband  has  no  greater  estate  than 
before,  unless  he  survive  his  wife.  He  has  a  title  to  have  an  es- 
tate upon  certain  conditions ;  and  although  this  estate  has  thus 
a  beginning  respected  for  certain  purposes,  yet  Lord  Coke  con- 
fines them  to  the  three  above  mentioned,  which  is  a  strong 
argunxeut  to  shew  that  it  is  respected  for  no  other  purpose 
whatever.  It  is  admitted  by  lord  keeper  Coventry^  when  attor- 
ney general,  arguing  for  a  forfeiture  to  the  crown  in  Sheffield 
mnd  Radcliff^  {a)  "  That  a  tenant  by  the  curtesy  cannot  grant 
*'  in  the  life  time  of  the  wife  his  estate  by  the  curtesy  to  another," 
because  nothing  shall  pass  by  grant  but  what  lawfully  may  pass, 
and  a  man  cannot  lawfully  pass  an  estate  before  he  has  it.  It 
seems  to  follow  therefore  that  not  having  the  estate  he  cannot 
forfeit  it  for  treason,  which  is  the  third  point. 

3.  It  cannot  be  questioned  that  if  the  husband  dies  before 
the  wife,  the  estate  by  the  curtesy  is  never  completed.  The  last 
condition  is  not  performed;  and  however  the  beginning  of  the 
estate  be  respected,  it  has  at  last  by  the  death  of  the  husband, 
living  the  wife,  turned  out  to  be  an  ineffectual  beginning.  By 
the  attainder  of  Galloway  he  became  civiliter  ynortiius,  and  as 
to  all  benefits  to  be  derived  from  the  law,  he  is  as  perfectly  un- 
known to  the  law  as  if  he  were  naturally  dead.  He  may  indeed 
by  his  own  contract  take  for  the  benefit  of  the  king;  but  the  law, 
which  does  nothing  in  vain,  will  not  give  him  an  inheritance  or 
freehold  by  act  of  law ^  for  he  cannot  keep  it.  2  Vin.  260.  pi.  20. 
Col/ing^uood  v.  Pace  (bj.  Upon  the  death  of  the  wile  the 
estate  by  the  curtesy  vests  in  the  husband  by  :!ict  of  law,  and  it 

(a)  Godb.  323.  (6)  1  Ventr.  417. 


S  CASES  IN-  THE  SUPREME  COURT 

ir99.      must  therefore  follow  that  in  case  of  his  attainder  the  law  will. 

jL^ggggj,     not  devolve  the  estate  upon  him,  for  it  will  do  a  thing  perfectly 

of        idle  and  vain,  as  the  husband  cannot  keep  it. 
Pemoeu-       The  cases  in  the  books,  though  to  this  point  they  are  not  nu- 
^^^       merous,  support  the  position. 

Hicks  "  ^  f^^uie  seised  in  fee  takes  baron  and  has  issue,  and  after 

"  the  husband  is  attainted  in  the  life  of  his  wife,  and  after  the 
"  king  pardons  him;  he  shall  not  be  tenant  by  the  curtesy  on  ac- 
"  count  of  the  issue  had  before  attainder.  Otherwise,  if  the  hus- 
"  band  had  issue  after  the  pardon."   13  ZT.  7.  17. 

This  case,  the  authority  of  which  cannot  be  questioned,  is 
conclusive  upon  the  present  controversy.  Even  if  the  husband 
be  restored  by  pardon,  yet  he  cannot  be  tenant  by  the  curtesy 
in  virtue  of  the  issue  bora  before  his  attainder.  After  the  cor- 
ruption of  the  inheritable  blood  bfetrween  him  and  his  issue,  the 
law  will  not  devolve  upon  him  the  curtesy  in  consequence  of 
that  issue,  although  issue  born  afterwards  will  produce  a  new 
title  upon  which  the  estate  may  ultimately  accrue.  The  inheri- 
tance of  the  wife  is  discharged  of  the  first  title  to  the  curtesy ; 
a  fortiori  if  he  is  never  restored  the  estate  by  curtesy  can  never 
be  completed,  and  as  he  cannot  by  possibility  take  it  in  any  way 
but  by  act  of  law,  the  king  cannot  have  it,  and  the  wife^s  estate 
must  be  discharged  of  it  for  ever.  We  have  accordingly  the 
warrant  of  subsequent  authorities  for  this  conclusion  from  the 
case  in  the  year  book.  "  Persons  attainted  of  treason  or  felony 
"  shall  not  be  tenants  by  the  curtesy,  for  the  law  intended  to 
"  give  the  inheritance  only  to  those  who  were  capable  of  hold- 
*'  ing  it  tola  vita  sua:  and  in  these  cases  their  title  shall  never 
"  arise  even  for  the  benefit  of  the  king,  but  the  wife's  estate 
"  shall  be  discharged  of  it  for  ever."  Bro.  tit.  Curtesy^  15. 
Staundf.  196.  2  Bac.  Abr.  219. 

In  the  case  of  Shejpeld  and  Raddiff  the  attorney  general 
Coventry  agrees  that  a  tenant  by  the  curtesy  in  the  life  of  the 
wife  cannot  grant  the  estate  by  the  curtesy  to  another,  "  yet,'* 
he  adtls,  "  he  may  forfeit  it  for  treason  or  felony  hii  tvay  ofdis- 
*'  charge.''^  There  is  nothing  in  this  case  but  the  wife's  estate  that 
can  be  discharged ;  for  if  the  forfeiture  accrue  to  the  crown,  the 
incumbrance  of  the  curtesy  upon  the  inheritance  of  the  wife  is 
in  no  manner  affected,  and  of  course  no  discharge  is  produced. 
The  same  doctrine  is  to  be  gathered  from  certain  general  po- 
sitions by  Lord  Cok-e  and  Lord  Hale  which  would  certainly  have 


OF  PENNSYLVANIA. 

been  qualified  so  as  to  exclude  this  doctrine  had  there  been  a      ifgg. 
question  of  its  truth.  "  Baron  entitled  in  right  of  feme  is  at-  ^"T       ~ 
-'  tainted,  the  king  shall  hold  durhi^  the  coverture^  1  H.  H.         ^f 
F.  C.  251.  "  Forfeiture  does  not  extend  to  lands  in  right  of  the  Pember- 
"  wife,  but  only  during  the  coverture.''''  3  List.  19.  And  as  in       ton 
neither  instance  is  it  mentioned  whether  issue  was  before  or  af-     j.ij~L.e 
ter  attainder  it  may  be  concluded  that  it  is  not  material,  and 
that  the  king  can  hold  in  either  case  during  coverture  only. 

Finally.  The  act  of  assembly  does  not  enlarge  the  objects  oi 
forfeiture  to  such  a  degree  as  to  embrace  this  kind  of  interest. 
It  is  a  mere  condition  upon  the  performance  of  which  the 
estate  will  arise,  but  which  is  not  forfeited  on  attainder  by  the 
general  words  of  the  law.  3  Co.  2,  3.  13  Vin.4>41.pl.  14.  3  Inst. 
19.  The  forfeiture  is  however  confined  to  those  rights  and 
estates  which  Galloway  had  on  the  4th  day  of  July  1 776,  or  at 
anytime  afterwards,  according'  to  the  respective  estates  or  inter- 
ests,- at  the  time  of  attainder  his  estate  was  not  complete,  and 
by  the  attainder  the  possibility  of  its  compktion  was  gone,  and 
notlnng  could  afterwards  arise. 

For  the  defendant.  Upon  general  principles  a  person  attaint- 
ed of  treason  forfeits  all  his  lands  and  tenements  of  inheritance 
whether  fee  simple  or  fee  tail ;  all  his  rights  of  entry  on  lands 
or  tenements  which  he  had  at  the  time  of  the  offence  committed 
or  at  any  time  afterwards,  and  also  the  profits  of  all  lands  and 
tenements  Avhich  he  had  in  his  own  right  for  life  or  years  so 
long  as  such  interest  shall  subsist.  4  Bl.  Com.  374.  2  IVoodcson, 
504. 

Before  issue  bom,  the  interest  of  Galloxuay  was  it  is  true  a 
mere  possibility;  but  instantly  upon  the  birth  of  issue  he  began 
to  have  a  '■'■  permanent  interest  in  the  land;"  and  both  the  rights 
and  duties  which  attend  upon  that  interest  shew  him  to  possess 
an  estate  for  life,  not  to  ar'tse  upon  the  death  of  the  wife  before 
him,  but  subject  to  be  defeated  by  the  happening  of  his  death 
before  hers.  He  is  entitled  to  do  homage  alone  for  the  wife's 
lands,  which  he  cannot  do  while  nurcl)'  seised  of  tlie  fee  in  her 
right;  and  the  reason  assigned  l)y  Lord  Coke  is  "  because  he  by 
*'  having  of  issue  is  entitled  to  an  estate  for  term  of  his  own 
"  life  in  his  own  right,  and  yet  is  seised  in  fee  in  right  of  his 
*'  wife,  so  as  he  is  not  bare  tenant  for  life."  Co.  Litt.  67.  a.  It 
is  impossible  for  words  more  explicitly  to  convey  the  idea  that 


a  A  CASES  IN  THE  SUPREME  COURT 

1799.      ^y  ^^^^  birth  of  issue  the  husband  becomes  tenant  for  life,  and 

— :; that  his  interest  is  not  limited  to  a  mere  title  to  have  such  an 

Qf        estate  upon  a  future  contingency.   Moreover  he  becomes  one  of 

Pember-   the  pares  ciiria:^  and  tenant  to  the  lord;  and  in  the  language  ol 

■*^'*       Bhickstone^  the  estate  is  so  vested  in  him,  that  although  it  is 

«  ^  '         conferred  for  the  maintenance  of  the  heir,  it  is  not  suffered  to 

HiCKS.  1         r    1        •     f 

determine  by  the  subsequent  death  of  the  mfant,  or  his  commg 
of  age.  2  BL  Com.  126.  He  may  do  many  acts  to  charge  the 
lands.  Ibid.  Avowry  shall  be  made  only  upon  him  in  the  life  of 
the  wife.  Co.  Litt.  30.  a.  If  he  makes  a  feoffment  in  fee  the 
feoffee  shall  hold  during  the  husband's  life.  Ibid.  And  having 
an  estate  vested  in  him  by  birth  of  issue,  which  from  its  union 
with  the  seisin  in  fee  entitles  him  to  do  homage  alone,  whereby 
he  becomes  tenant  to  the  lord  and  bound  to  do  him  suit  in  his 
court,  with  a  right  moreover  to  charge  the  lands  in  various 
ways,  and  by  feoffment  to  convey  a  good  estate  for  his  own  life, 
it  seems  necessarily  to  follow  that  he  may  forfeit  it  to  the  king 
for  treason.  For  these  powers  and  obligations  shew  conclusively 
that  the  husband  has  an  estate  for  life  in  his  own  right,  and  it  is 
a  maxim  in  law  that  what  a  man  has  in  his  own  right  he  may 
forfeit.  Harrises  case,  (a) 

That  Galloxvay  is  civilly  dead  as  to  all  actions  there  is  no 
doubt :  but  as  to  all  his  rights  he  is  completely  represented  by 
the  commonwealth.  If  it  were  not  so,  whence  comes  the  right 
of  the  commonwealth  to  take  the  profits  of  the  wife*s  lands 
during  coverture?  His  existence  is  still  contemplated  in  law  for 
the  beneficial  purpose  of  preserving  his  rights  in  the  common- 
wealth; and  although  they  may  continue  subject  to  every  de- 
feasance that  would  have  operated  before  attainder,  yet  here 
the  estate  by  the  curtesy  has  escaped  the  only  one  to  which  it 
was  subject,  and  it  remains  an  indefeasible  estate  for  life.  The 
contrary  position,  against  the  obvious  policy  of  the  law,  which 
however  distressing  it  may  be  is  nevertheless  to  be  judicially 
recognised,  would  accelerate  the  descent  to  the  heir,  and  confer 
a  bounty  on  the  child  for  the  treason  of  his  father. 

The  only  authorities  which  oppose  this  clear  result  from  all 
that  has  been  written  upon  the  nature  of  the  husband's  estate, 
are  the  13  H.  7.  17.  and  the  admission  of  Coventry  while  at- 
torney general. 

ia)^Lcon.\\2. 


OF  PENNSYLVANIA.  9 

The  first  is  a  mere  dictum  by  Kehle;  and  whether  at  that  time      1799. 
a  judge  is  not  known.  It  does  not  appear  in  the  year  book  what     ^  ^ 

was  the  question  under  consideration,  nor  whether  there  were         ot 
any  parties  iiefore  the  court.   It  could  not  have  been  a  question  Pember- 
similar  to  this,  for  by  a  reference  to  Noy  159.  we  find  it  to  have        *^^ 
turned  upon  the  corruption  of  blood,  and  whether  upon  the  fa-     Hrc'K<; 
ther's  attainder,  the  sister  might  be  heir  to  the  brother  of  the 
mother's  estate.  If  the  pardon  contained  words  of  restitution  the 
point  might  have  been  settled  in  conformity  with  Ktble's  opi- 
nion without  bearing  in  the  least  upon  the  question  now  before 
the  court.  This  case  therefore  is  worthy  of  little  consideration. 

The  admission  by  Coventrij  has  still  less  weight.  It  was  not 
the  point  adjudged;  and  he  cites  as  his  authority  the  above  case 
o{  \Z  H.  7.  17.  which  contains  nothing  to  his  purpose.  There  is 
not  a  syllable  in  it  of  a  forfeiture  dy  zva/j  of  discharge;  andjin- 
deed  it  is  in  itself  an  expression  so  absurd  that  it  is  not  probable 
he  could  have  found  an  authority  for  it  any  where. 

The  quotation  from  Bacoi^s  Abridgment^  and  the  senti- 
ments of  elementary  writers  are  all  referable  to  this  dictum  and 
admission;  and  the  present  case  stands  therefore  upon  its  own 
peculiar  footing;  the  clear  estate  of  the  husliand,  and  the  sweep- 
ing forfeiture  to  the  commonwealth  of  every  estate  which  Gal- 
loivay  had  on  the  4th  July  1770.,  or  at  anytime  afterwards. 

If  however  a  doubt  can  arise  upon  the  authorities  which  ap- 
ply to  forfeitures  in  E/iifiand,  the  comprehensive  terms  of  the 
act  of  Assembly  must  put  them  to  rest;  for  li  Gcdbxvay  had  an 
estate  of  any  nature  or  kind  soever  in  the  premises;  if  he  was 
in  any  way  interested  in  or  entitled  unto  the  lands,  his  estate,  his 
interest  and  his  title  are  forfeited  to  the  commonwealth  and 
the  plaintiff  cannot  recover. 

Cur.  adv.  vuU. 

On  the  23d  December  1799  the  Judges  delivered  their 
opinions.  But  M'-Kian.,  who  presided  at  the  argument  as  chief 
justice,  was  not  at  this  time  on  the  bench,  having  been  chosen 
governor  of  the  commonwealth  \\iOctober  1799. 

Shippf.n  C.  J.  The  question  to  be  decitled  in  this  case  is 
whether  the  curtesy  estate  of  the  husband  in  ihr  lands  of  the 
wife  is  forfeited  to  the  commonwealth  for  the  life  of  the  hus- 
band by  an  attainder  for  treason  committed  i)v  him  in  her  lifr 
time  and  after  issue  bom. 

Vol.  I.  li 


10  CASES  IN  THK  SUPREME  COURT 

1799.  In  tvcry  (Icfmiiion  of  an  estate  by  curtesy,  the  death  of  the 

wife  is  an  essential  ingredient  to  complete  the  estate  in  the 


"  of         husband;  before  that  event,  and  even  after  issue  born,  there  is 
Pember-  but  a  possibility  that  such  an  estate  may  vest,  but  it  does  notac- 
''■"N       tualiy  vest  till  the  contingency  happens. 
Ti  ^  ■  The  husband's  estate  during  her  life  is  of  a  different  and  su- 

perior  kind;  it  is  an  estate  of  inheritance  \nher  right.  Upon  her 
death  that  estate  ceases,  and  the  estate  by  curtesy  vests.  A 
feoffment  in  fee  made  by  him  in  her  life  time  will  be  no  forfeit- 
ure of  his  future  estate  for  life;  but  the  feoffee  shall  hold  the 
estate  during  the  life  of  the  husband  against  the  hcir^  which  he 
could  not  do  if  the  estate  for  life  had  vested,  because  in  that  case 
it  would  have  been  forfeited,  and  have  fallen  into  the  inherit- 
ance. Co,  Litt.  30.  a. 

If  then  the  curtesy  estate  does  not  vest  in  the  husband  before 
the  death  of  the  wife,  does  not  his  previous  attainder  for  trea- 
son effectually  prevent  its  ever  vesting  at  all?  There  is  no  doubt, 
but  an  attainted  person  or  an  alien  may  contract  for  and  pur- 
chase an  estate  so  as  to  enable  him  to  take  it  although  not  for 
his  own  benefit,  vet  for  the  benefit  of  the  commonwealth;  but 
there  is  an  established  distinction  between  an  estate's  coming  to 
such  person  by  contract  and  its  devolving  to  him  by  act  or  g-ift 
in  knv:  in  the  latter  case  no  title  can  be  derived  to  the  alien  or 
attainted  person  even  for  the  benefit  of  the  crown. 

Lord  Hale  in  his  ai'gument  in  the  case  of  CoUingwood  and 
Face  in  Ventr.  417.  states  the  law  to  be  that  an  alien  or 
attainted  person  cannot  on  that  principle  take  by  descent,  cur- 
tesy^ or  dower,  for  the  benefit  of  the  crown ;  and  in  2  Bac.  Abr. 
219.  it  is  said  the  title  of  the  husband  to  the  curtesy  shall  never 
arise,  but  the  wife's  estate  shall  be  discharged  of  it  forever. 

In  3  In.st.  19.  Lord  Coke^  treating  of  forfeiture  for  treason, 
says  it  extends  not  to  lands  in  right  of  a  wife,  but  only  during 
coverture.  Lord  Halc\s  doctrine  is  to  the  same  effect  in  1  H. 
H.  P.  C.  251.  In  the  case  of  Lord  Sheffield  and  RadcliJ^  Godb. 
323.  it  is  acknowledged  by  lord  keeper  Coventry  that  the  hus- 
band, in  the  life  of  liis  wife,  cannot  grant  his  curtesy,  and  that 
his  forfeiture  is  a  discharge  of  it.  This  word  discharged  evi- 
dently means  that  the  estate  shall  go  to  the  heir,  discharged  of 
the  curtesy  estate,  2  Bac.  Abr.  219.;  the  reason  of  which  is,  as 
I  take  it,  that  by  his  attainder  the  inheritable  blood  between 
i>im  and  the  issue  is  destroyed,  and  he  stands  in  the  same  con- 


OF  PENNSYLVANIA.  '  11 

dition,  as  it"  he  had  no  issue  by  his  wife;  for  if  after  attainder      1799. 
he  had  been  pardoned  and  had  *?//'5'<'5'?/r/2f  issue,  he  would  be     L^^^see" 
tenant  by  the  curtesy.  of 

It  has  been  said  at  the  bar  that  the  cases  referring  to  the  yeai*   Pember- 
book,  13  H.7.\7.  are  not  warranted  bvthe  year  book,  and  that        ^^^ 
the  particulars  of  that  case  are  not  enumerated,  and  that  it  does     Hxcks. 
not  appear  whether  Keble  was  a  judge  or  not.   To  this  I  think  it 
may  be  fairly  answered,  that  whatever  may  have  been  the  origi- 
nal of  this  ancient  doctrine,  or  the  objections  to  it,  the  doctrine 
itself  has  been  so  repeatedly  recognised  in  our  law  books,  and 
so  uniformly  brought  down  in  all  the  abridgments  of  the   law, 
that  it  seems  to  have  become  a  rule  of  property,  and  not  at  this 
time  of  day  to  be  impugned  by  any  objections  to  the  original 
authority. 

The  most  plausible  reason  urged  in  favour  of  the  forfeiture 
is,  that  in  Co.  Litt.  30.  a,  it  is  said  that  where  a  man  after 
having  inheritable  issue  conveys  his  wife's  estate  in  fee,  the 
Icoffee  shall  hold  after  the  wife's  death,  against  the  heir^ 
during  the  husband's  life;  and  it  is  inferred  that  whatever  a  man 
may  grant  he  may  forfeit.  But  the  estate  conveyed  in  that  case 
was  not  the  curtesy  estate^  for  that  had  not  vested;  if  it  had  it 
would  have  been  forfeited  to  the  heir  by  the  feoffment  in  fee; 
but  ^fce  simple  estate  in  right  of  the  wife;  and  the  husband  was 
esto])ped  from  claiming  against  the  feoffee  his  life  estate  accru- 
ing afterwards;  and  as  to  the  heir  the  curtesy  haying  afterwards 
vested  by  the  death  of  the  wife  it  was  immaterial  to  him  whe- 
ther the  right  was  in  tlie  husband  or  in  his  grantee;  he  must 
wait  till  the  death  of  the  husband.  And  when  it  is  considered 
that  in  the  case  cited  there  was  nothing  to  prevent  the  vesting 
of  the  curtesy,  after  the  death  of  the  wife,  whereas  in  the  present 
case  there  arose  an  aljsolute  bar  to  its  vesting  by  the  attainder 
of  the  husl)and,  there  can  be  no  proper  application  ol  that  case  to 
the  present.  Besides,  it  is  by  no  means  a  general  rule  that  by 
attainder  a  man  \\'\\\  forf'U  as  much  as  he  may  tyrant;  for  in  a 
case  not  very  dissimilar  to  this  in  principle,  if  issue  in  tail,  in 
the  life  of  his  father,  is  attaint  of  treason  and  dies,  it  is  no  for- 
feiture of  the  estate  tail;  yet  if  he  had  levied  a  fine  in  his  father's 
life  it  would  have  been  a  bar  to  his  issu:.  (iodb.  31G.  cites 
3  Kcp.  50.  Sir  George  JhowrCs  case,  and  abridged  in  13  Vin^ 
t47. 


12  CASES  IN  THE  SUFHEMK  COURT 

17'99.  It  is  however  urged  on  the  part  of  the  defendant  that  the 

J  words  of  our  act  of  Assembly  are  of  larger  extent  and  compre- 

of         hend  more  subjects  of  forfeiture  than  either  the  common  law  or 

Pr-MnEu-  die  statutes  of  Englajid  do  embrace;  to  this  a  proper  answer  was 

^'^^       given  at  the  bar,  namelv,  that  the  act  of  Assembly  confines  the  for- 

HiCKS.     ti^iture  to  those  rights  and  estates  which  they  had  on  the  4th  ot 

Jiily  1776  or  at  any  time  afterwards,  in  their  own  rights  or  to 

their  use,  according'  to  their  respective  estates  or  interests ;hvit  if 

by  law  and  by  the  attainder  the  curtesy  estate  was  extinguished, 

no  estate  or  interest  remained  to  be  forfeited. 

Forfeitures  in  general,  so  far  as  they  relate  to  the  depriving 
the  innocent  of  their  property,  can  only  be  justified  by  reasons 
of  public  policy;  and  I  should  be  averse  to  visiting  the  sins  of 
the  father  upon  the  children,  unless  warranted  by  express  au- 
thorities, which  appear  to  me  to  be  wanting  in  the  present  case. 
I  am  therefore,  upon  the  whole,  of  opinion  that  both  on  prin- 
ciple and  authority,  the  curtesy  estate  of  Joseph  Galloway  was 
not  forfeited  to  the  commonwealth  by  his  attainder  tor  trea- 
son; but  that  by  such  attainder  that  estate  could  never  take 
place,  and  the  inheritance  was  discharged  of  it  foreverj  and  that 
consequently  the  heir  of  the  wife  should  recover. 

Yeates  J.  Whether  the  premises  in  question  were  forfeited 
during  the  life  of  Joseph  Galbwaif  by  his  having  issue  previous 
to  his  attainder,  which  happened  before  the  decease  of  his  wife, 
depends  on  the  words  of  the  law  of  6th  March  1778. 

What  then  was  the  estate  of  Joseph  Galloway  in  these  lands, 
in  the  life  of  his  wife,  after  the  birth  of  their  daughter? 

It  has  been  contended  by  the  defendant^  that  though  the  estate 
of  the  husband  be  not  consummate  until  the  death  of  the  wife,  yet 
that  it  hath  such  a  beginning  after  issue  had  in  the  life  of  the 
wife  as  is  respected  in  law  lor  divers  purposes:  First,  after  issue 
had  he  should  do  homage  alone  and  become  tenant  to  the  lord 
by  the  old  feudal  law.  Secondly,  if  after  issue  the  husband  ma- 
keth  a  feoffment  in  fee  and  the  wife  dieth,  the  feoffee  shall  hold 
it  during  the  life  of  the  husband,  and  the  heir  of  the  wife  shall 
not  during  his  life  recover  it  in  a"  surcui  in  vita;^^  for  it  would 
not  be  a  forfeiture,  since  the  estate  at  the  time  of  the  feoffment 
was  an  estate  of  tenancy  by  the  curtesy  initiate  though  not  con- 
swnmate.  Co.  Litt.  30.  a.  Ley.  9,  10.  It  is  therefore  insisted  that 
Galloway  in  this  case  had  more  than  an  estate  for  life  in  these 


OF  PENNSYLVANIA.  13 

lands;  and  that  as  he  could  grant  them  for  the  term  of  his  own      1799. 
life,  he  could  forfeit  his  interest  therein  for  the  same  term.  The     j^^gg^g 
husband  bv  having  issue  is  seised  in  his  own  right  for  life,  and         of 
vet  is  seised  in  fee  in  right  of  his  wife,  and  so  as  he  is  not  a  bare   Pember- 
tenant  for  life;  he  therefore  shall  after  issue  receive  and  do  horn-        ^°^ 
age  alone  during  the  life  of  the  wife.  Co.  Litt.  67.  a.  As  soon     Hicks. 
as  a  child  was  born  the  father  began  to  have  th  permanent  inte- 
rest in  the  lands,  which  was  not  liable  to  be  determined  by  the 
subsequent  death  or  coming  of  age  of  the  infant.  2  Bl.  Com. 
127.  He  might  do  many  acts  to  charge  the  lands.  lb.  128.  So 
in  Ploxvden  264.  it  is  said  by  Weston  J.  that  if  a  woman  lakes 
husband  and  has  issue  and  lands  descend  to  her  and  the  husband 
enters  he  is  entitled  to  be  tenant  by  the  curtesy. 

I  frankly  confess  my  sentiments  on  this  subject  have  under- 
gone a  material  change  since  the  last  argument.  The  definition 
of  curtesy  by  Littleton  sec.  35.  is  that  it  takes  place  on  the  death 
of  the  wife,  the  husband  surviving  her.  So  in  2  Bl.  Com.  126.  it  is 
said  the  husband  shall,  on  the  death  of  the  rvife^  hold  the  lands 
for  his  life  as  tenant  by  the  curtesy  of  England;  and  many  other 
books  pursue  the  same  expressions.  According  to  Lord  Coke 
the  estate  is  not  consummate  until  her  decease.  Co.  Litt.  29.  a. 
Such  then  is  the  legal  as  well  as  vulgar  acceptation  of  the  terms 
estate  by  the  curtesy^  that  it  does  not  completely  vest  until  the 
wife's  death.  2  Buc.  Abr.  219.  Doc.  and  Stud.  dial.  2.  c.  4.fo/. 
115. 

The  reason  why  under  the  feudal  system  the  husband  shall 
receive  and  do  homage  alone,  during  his  wile's  life,  after  issue 
had,  is  his  having  a  seisin  in  fee  in  right  of  his  wife;  for  as  a 
mere  tenant  for  life  he  sliall  not  do  homage.  Litt.  sec.  90.  And 
this  seems  the  true  ground  wh\'  ihe  leoiTment  of  the  husband, 
after  a  child  born,  shall  not  Ije  a  Ibrleiluri-:  Win  future  Interest 
and  title  to  be  tenant  by  the  curtes\'  is  involved  and  passes  by  it 
to  the  feoffee;  though  not  to  such  purpose  as  to  make  him  tenant 
by  the  curtesy  which  none  but  the  husband  himself  can  he  2 
Bac.  Abr.  219.  If  he  was  merely  tenant  for  life,  his  feoffment 
in  fee  would  clearlv  be  a  forfeiture. 

The  husband  may  have  n  permanent  interest  in  the  land  on 
the  birth  ot  a  child,  for  certain  purposes,  I)ut  not  for  others. 
It  may  tiot  be  affected  by  any  event  happening  to  the  child  ;  l)Ut 
his  inception  of  estate  derived  from  such  child  mav  be  extin 


14.  CASKS  IN  THE  SUPREME  COURT 

1 79'iK      guishccl  by  u  subsequent  civil  disability,  to  take  the  land  on  tht 
termination  of  the  life  of  his  wife. 


of  In  the  English  edition  of  Ploxvdcn  (254)  so  much  applauded 

Pemj^kr-  by  Hargravc  in  his  note  on  Co.  Lift.  23.  a.  it  is  said  in  the  mar- 
^'■^^       ginal  note  of  the  case  nbove  cited,  that  though  the  title  of  the 
Hicks      husband  is  initiate  by  the  seisin  of  the  wife,  it  is  not  consum- 
mate nor  begins  to  hav'c  any  ej/ect  until  her  death. 

Nor  is  it  universally  true  that  because  an  interest  may  be 
gi-anted,  it  may  therefore  be  forfeited.  This  consequence  is 
denied  bv  Lord  Coke  arguendo  in  Venable's  and  Harrises  case, 
2  Leon.  126.  He  says  "  a  man  seised  in  right  of  his  wife  may 
"  grant  but  not  forfeit.  The  husband  may  grant  a  term  for  years, 
"  which  he  hath  in  right  of  his  wife,  but  he  cannot  forfeit  it. 
"  A  woman  inheritrix  taketh  a  husband,  who  afterwards  is 
"  attainted  of  felony;  the  king  pardons  him;  they  have  issue; — 
"  the  husband  shall  be  tenant  by  the  curtesy;  which  proveth  that 
"  the  king  hath  not  the  freehold  by  that  attainder."  Pop/iam, 
Avho  argued  for  the  crown  in  the  same  case,  concurs  in  denying 
the  same  consequence.  4  Leon.  112.  So  also  Croie  in  Lord 
SheJ^eld and  J^adcliJ/''s  cast-.  Godb.  316. 

The  plaintiff's  counsel  have  insisted  that  the  case  before  the 
court  has  already  received  a  determination,  and  Is  not  now  open 
to  he  argued  on  general  principles.  They  rely  on  the  year  book 
13  if.  7.  17.  which  runs  thus  :  "  A  man  marries  a  feme  inheri- 
"  trix  and  has  issue;  he  commits  felony  of  which  lie  is  attainted; 
••'  the  king  pardons  him ;  Kebk  said  that  he  should  not  be  te- 
"  nant  by  the  curtesy  by  reason  of  the  issue  had  before  the 
"  attainder ;  but  if  he  had  other  issue  afterwards,  he  shall." 
It  must  I  conceive  be  admitted,  if  these  positions  are  received 
as  settled  law,  and  of  course  a  rule  of  property,  that  they 
establish  the  plaintiff's  claim. 

I  find  from  Dugdale's  Chronica  Series  75.  contained  in  his 
Origines  Jiiridicales^  that  Keblc  was  called  as  a  sergeant  in  the 
first  year  of  Hen.  7.  and  in  the  same  year  book  14  H.  7.  7.  in 
the  2d  line,  he  is  styled  one  of  the  king's  sergeants.  The  dic- 
tums  of  Kcblc  in  16  H.  7.  8.  are  cited  with  approbation  in 
many  books ;  as  F.  N.  B.  84  A.  98  B.  456  /'.  The  assertions 
of  eminent  counsel,  uncontradicted  at  the  time,  or  by  subse- 
quent cases,  have  always  been  received  as  evidence  of  the  law; 
such  dlctums  are  often  repeated  in  the  year  books,  and  in 
the  reports  of  Plorvdcn  and  Coke  particularly.  Ohjn  C.  J.  in 


OF  PENNSYLVANIA.  i6 

Poster  undl^amsai/^  2  Sid.  150.  expresses  himself  thus,  ^'  Our      1799. 
"  vtrv  case  was   put   hv  Stephens^   the   defendants'    counsel,     y 
"  /?ex  against  Boriaton  and  Adams.,  Noij  159.  and  not  denied         of 
*'  by  the  court;  though  Fleming-.,  who   argued  on  the  other  Pembeu- 
"  side,  denied  it."  Both  the  counsel  who  argued  in  Xoy  159.       ^°^ 
168.  admit  the  authority  of  the  case  in  question;  ^n<X  Coven-     Wn^-^^, 
try  attorney  general,  in  2  Roll.  Rep.  340.  Lord  Sheffield  and 
Raddiff'.,  and  Godb.  323.  S.  C.  also  admits  it.   It  is  moreover 
cited  in  Co.  Litt.  391.  b.  in  inargine;  by  Allen  in  Foster  v. 
Ramsay.,  1   Keb.  217.;   and  by  Lord  C.  J.  Bridgman  id.  701. 
S.  C.    i  i  is  so  much  relied  on  by  sergeant  Haxvkins  in  his  2d 
part  of  Picas  of  the  Croxvn.,  c.  49.  sec.  49.  p.  4'57.  that  he 
reasons  from  it  as  a  settled  case,  against  even  Lord  Coke''s 
opinion.   The  case  is  likewise  recognised  in  his  P.  C.  196.  and 
is  there  said  to  accord  with  the  opinion  of  Justice  Fitzherbert,- 
by  Broke^  Tit.  Tenant  by  the  Curtesy  pi.  15.;  by  Viner  7  vol. 
162.pl.  4.  and  4  vol.  273.  pi.  20.;  and  by  Lord  Chief  Bra'on 
Comyns  in  the  3d  volume  of  his  Digest  244.  In  Ter?ns  de  la 
Z<"i/,  first  published  in   1563,  sub  voces  Curtcsie  of  England., 
the  doctrine  is  set  forth  at  large,  but  no  authority  is  cited, 
though  the  words  in  the  year  book  aix'  used. 

The  assertions  of  sergeant  Keble  are  also  warranted  by  ana^ 
logy  drawn  from  other  books.  Thus  in  Perkins  sec.  387.  if  the 
husband  commits  treason,  felony,  or  murder,  and  is  attainted, 
this  shall  oust  the  wife  of  dower;  but  if  after  the  attainder  the 
husband  purchases  his  charter  of  pardon,  then  of  all  such  estates 
of  inheritance  of  which  the  husband  is  sejsed  alter  his  pardon, 
which  the  issue,  that  he  may  by  possibility  have  by  his  wife, 
may  inherit  by  the  common  law,  she  shall  have  dower  Sec;  for 
notwithstanding  she  was  liis  wife  at  the  time  of  attainder,  yet 
the  issue  which  the  husband  may  have  bv  lier  after  his  pardon, 
is  inheritable.  If  a  son  and  heir  l)e  outlawed  in  the  time  of  his 
father,  and  afterwards  in  the  life  of  his  father  procures  his 
pardon,  and  then  his  father  dies,  he  shall  not  have  his  lands  b}- 
descent,  but  the  lord  of  whom  they  are  held  shall  have  them  b) 
escheat.  Fitz.  Disccnt.  17.  J'rin.  13  £.  1.  So  il  the  rldesi 
son  be  attainted  of  felony  and  obtains  a  pardon  in  the  life  ol 
his  fatlier,  who  afterwards  dies,  the  land  shall  escheat,  because 
the  j)ardon  cannot  avoid  the  corruption  of  blood.  Jiro.  Disccnt. 
pi.  44.  HE.  1.  Pardon  restores  not  to  blood  (without  an  act  oJ 
parliament)  except  as  to  issue  begotten  afterwards.  Co.  Lift. 


V 

Hicks 


16  CASES  m  THE  SUPREME  COURT 

1799.      8-  "•  391.  l>.  392.  a.  S.  P.  C.  195.  B.  3  Inst.  233.  W.  Jo.  34. 
~  1  //.  H.  P.  C.  358.  A  person  attainted,  though  he  hath  a  par- 

oC  don,  cannot  chiim  by  descent.  Cro.  Car.  A77.  Bacoii's  use  of  the 
Pember-  Laiv  140,  1.  Thus,  it  appears  to  me,  that  the  authority  of  the 
TON  case  in  13  ^.  7.  17.  is  fully  vindicated,  as  well  from  the  un- 
contradicted arguments  of  counsel  and  of  judges,  and  its  adop- 
tion by  elementary  writers  of  the  first  reputation,  as  from  the 
general  principles  and  analogy  of  the  law.  To  adopt  the  lan- 
guage of  Judge  Morcton  in  1  Mod.  40.  as  to  another  resolution 
( Harding  V.  JFarner,  Latch  24.)  "  The  case  has  walked  through 
*'  all  the  courts  of  Westminster  Hall  undisturbed." 

But  the  present  case  rests  not  solely  on  this  authority:  it  is 
fully  settled  that  tenants  by  the  curtesy  and  in  dower  come  in 
by  descent,  merely  by  act  of  law.  Co.  Litt.  18.  b.  Now  in  all 
cases  (except  intails)  attainder  of  treason  or  felony  corrupts  the 
blood,  upwards  and  downwards,  so  that  no  person  that  must 
make  his  derivation  by  descent  to  or  through  the  party  at- 
tainted, can  inherit.  Co.  Litt.  8.  a.  84.  b.  392.  a.  1  H.  H.  P.  C.  356. 
358.  Dij.  274.  And  though  an  alien  may  take  by  purchase  by 
his  own  contract,  that  which  he  cannot  retain  against  the  king, 
yet  he  is  not  enabled  to  take  by  act  in  law;  for  the  law  which 
does  nothing  in  vain,  will  not  give  an  inheritance  or  freehold  by 
act  in  law  where  it  cannot  be  kept;  and  therefore  the  law  will 
not  give  descent,  curtesy,  dower,  guardianship.  And  in  respect 
of  this  incapacity  he  does  resemble  a  person  attainted,  with  this 
difference,  that  the  latter  is  a  person  whom  the  law  takes  notice 
of,  and  therefore  the  eldest  son  attainted  surviving  the  father 
shall  impede  the  descent  to  the  younger  son.  Collingwood  \. 
Pace^  1  Ve7itr.  417.  per  Lord  Chief  Baron  Hale.  S.  C.  and  S.  P. 
1  Keb.  672.  S.  P.  Stra.  332.  by  counsel  arguendo. 

Here  then  as  to  Joseph  Galloxvny  the  vinculum  of  descent 
was  destroyed  by  his  political  offence.  To  use  the  expressions 
of  Mr.  7'ork  in  his  considerations  on  the  law  of  forfeiture 
(p.  88.):  "  Bound  as  he  was  to  the  community  by  nature,  moral 
"  duty,  and  experience,  he  disclaimed  the  law  and  was  dis- 
"  claimed  by  it;  by  his  own  voluntary  act,  he  has  shewn  himself 
"  an  alien  in  affection.''^  He  therefore  shall  not  be  admitted  to 
the  legal  right  of  descent;  his  title  shall  never  arise  even  for  the 
benefit  of  the  commonwealth;  and  the  estate  of  his  late  wife 
shall  be  dischareed  forever  of  his  claim. 


OF  PENNSYLVANIA.  17 

This  was  the  reasoning  ol"  CoftVi/rz/,  attorney  general,  who      1799. 
would  not  readily  have  given  up  the  rights  of  the  crown,  in     Lessee 
Lord  Sheffield  and  Rackliff.  The  husband  by  attainder  of  treason         of 
or  felony,  forfeits  his  right  as  tenant  by  the  curtesy  by  way  of  Pember- 
di.Hcharg-e;  or  as  the  same  case  is  reported  in  2  RoL  Rep.  340.        ^°^ 
if  the  husband  commits  felony  or  treason,  he  forfeits  the  dower     jJicKS. 
of  his  wife,  and  yet  this  is  a  thing  in  action,  and  goes  in  dis- 
charge or  surrender.    13  //.  7.  17.  A  man  takes  a  woman  in- 
heritrix to  wife,  and  has  issue  and  commits  felony,  he  shall  for- 
feit his  tenancy  by  the  curtesy. 

It  appears  therefore  that  Joseph  Galloxvay  was  legally  inca- 
pable of  taking  the  premises  in  question  after  the  decease  of  his 
wife,  by  right  oi  descent  as  contradistinguished  from  purchase. 
His  claim  was  intercepted  by  his  attainder,  and  could  not  take 
eft'ect  by  his  civil  death  any  mere  than  if  he  had  paid  the  com- 
mon debt  of  nature.  But  the  case  is  otherwise  as  to  his  daugh- 
ter; for  where  a  person  attainted  hath  issue  by  a  woman  seised 
of  lands  of  inheritance,  such  issue  may  inherit  to  the  mother^ 
though  he  or  she  never  had  any  inheritable  blood  from  the 
father.  2  Hcnvk.  457.  and  the  cases  there  cited.  So  children 
born  after  the  father's  attainder  may  be  heirs  to  each  other  on 
the  principle  of  Collinf^wood  v.  Pace^  that  the  children  of  an 
alien  mav  be  heirs  as  between  themselves  though  not  as  to  the 
father.  Harcf.  Co.  Lift.  8.  a.  note  5.  12.  a.  note  7.  Consequently 
if  the  father  had  no  capacity  to  take  the  lands  the  daughter 
would  become  entitled  thereto  as  heir  of  the  mother,  though 
in  the  life  of  the  father. 

A  few  cases  yet  remain  to  be  cited  which  I  soon  shall  pass 
over.  Where  the  husband  commits  treason  the  common  law 
gives  ?i  forfeiture  of  the  inheritance  of  the  wife  only  during  the 
coverture.  It  was  otherwise  by  stat.  26  //  8.  c.  13.  as  to  trea. 
son;  but  it  is  now  remedied  by  5  and6.  Ed.  6.  c.  11.  fenk.  287. 
Staundf.  187.  Vide  Co.  Lilt.  351.  a.  Pollcxf  51.  Parsons  \. 
Pearse  et  al.  As  to  lands  of  inheritance  if  the  liusband  be  seised 
in  right  of  his  wife,  and  is  attainted  of  treason,  the  king  hath  the 
freehold  during  the  coverture.  1  H.  II.  P.  C  251.  And  Lord 
Coke  asserts  the  same  doctrine  in  his  2>d  Inst.  19. 

On  the  whole  I  am  of  opinion  that  judgment  be  entered  for 
the  plaintiff. 

Vol..  r.  C 


18  CASKS  IX  Tin:  suprkmk  court 

1799.  Smitu  J.    Whether  the    law   inflicting  the  punishment  of 

""Lessee     f'orfeiture  of  property  on  the  commission  of  high  treason  be 
of         founded  in  mercy  or  in  rigorous  and  austere  justice,  can  have 
pEMBEU-  no  weight  in  determining  the  question  before  us.   From  one 
^^        point  of  view  the  huv  of  forfeiture  for  high  treason  may  seem 
Hicks.     ^^^^^^  ^nd  cruel;  the  innocent  and  helpless  part  of  a  family  suf- 
fer for  the  crime  of  the  head  of  it  over  whom  they  have  no  con- 
trol. Were  it  possible  for  human  legislators  to  enact  perfect 
laws,  it  would  be  the  wish  of  every  benevolent  mind  to  have 
this  law  altered  in  its  effects  upon  such  persons;  but  inexpe- 
rience must  unite  with  benevolence  in  the  minds  of  those  who 
will  propose  further  alterations  than  have  been  made  in  the 
constitution  of  the  United  States  in  this  respect,  ar^ic/e  3.  sec.  3. 
and  the  laws  of  this  state.  1  State  Lazvs  846. 

If  the  law  of  forfeiture  for  treason  were  altered,  so  as  that 
such  parts  of  a  familv  might  suffer  no  punishment,  such  altera- 
tion would  indeed  be  merciful  to  such  individuals;  but  the 
general  efl^ect  would  be  extensive  cruelty  to  society  at  large, 
and  would  frequently  end  in  its  dissolution :  as  self-preserva- 
tion is  the  first  law  of  nature,  so  it  is  likewise  the  first  law  of 
society. 

In  every  nation,  under  every  government,  there  are  many 
men  of  gloomy  discontented  minds,  of  vehement  spirits,  of 
disappointed  or  perverted  ambition,  of  desperate  fortunes.  The 
minds  of  such  men  are  restless,  ever  on  the  rack  to  gratify  their 
malignity  or  their  ambition,  or  to  repair  their  shattered  for- 
tunes. So  (ar  as  they  consider  themselves,  they  are  desperate  ; 
the  peace,  welfare,  or  happiness,  even  the  existence  of  the  go- 
vernment which  protects  them  can  have  no  influence  in  re- 
straining such  men  from  the  most  desperate  measures  to  accom- 
plish their  purposes.  The  only  human  consideration  which  can 
withhold  them  from  endangering  the  nation,  is  their  attach- 
ment to  their  wives  and  children,  which  is  frequently  implant- 
ed, for  wise  purposes,  unusually  strong  in  the  minds  of  such 
men  by  the  all  wise  Author  of  our  being. 

From  this  point  of  view  the  law  of  forfeiture  is  merciful  to 
mankind;  it  may  sometimes  be  productive  of  partial  ill,  but  its 
general  eflfect  will  be  universal  good.  Besides,  property  is  cre- 
ated and  preserved  by  government  and  laws;  consequently 
every  govrrnment  may  regulate  it  in  such  a  manner  as  the  soci- 
ety deems  most  conducive  to  the  good  of  the  whole  nation. 


OF  PENNSYLVANIA.  19 

By  some  it  may  be  said  that  the  case  of  J.  Galloway  is  dif-      1799. 
ferent  from  that  of  a  subject  under  an  established  government  ""7  ' — 

who  commits  treason.   I  answer  that  in  every  nation  the  will  of         of 
the  majority  must  govern,  to  which  every  one  of  the  minority  Pember- 
must  submit  as  soon  as  the  society  becomes  a  nation.  From  the       "^^^ 
time  independence  was  declared,  it  became  the  duty  of  every     tt 
citizen  of  the  United  States  not  only  to  submit  to  it,  but  to  as- 
sist in  its  establishment.  In  trials  for  high  treason  immediately 
after  the  revolution  in  England,  it  was  never  alleged  that  the 
case  of  anv  of  the  prisoners  was  different  from  the  case  of  a  sub- 
ject under  an  ancient  government,  who  has  committed  treason. 
^Moreover,  could  it  have  an)'  weight,  which  I  am  clear  it  has 
not,  y.  Galloxvay  assisted  in  those  measures,  which,  according 
to  the  common  course  of  events  led  to   that  independence, 
which  he  afterwards  laboured  to  destroy. 

The  question  tlierefore  is  not  whether  the  law  of  forfeiture 
for  high  treason  be  humane  or  rigorous;  but  the  question  is 
what  is  the  law  ?  On  this  question  it  is  our  duty  and  we  are 
competent  to  decide.  The  law  being  penal,  it  is  our  ducy  to  con- 
strue it  not  to  extend  beyond  the  letter  of  it. 

Any  lawyer  who  has  never  had  occasion  to  examine  the 
point  now  before  us,  indeed  any  person,  though  not  a  lawyer, 
who  is  acquainted  with  the  history  of  England,  and  reflects  how 
many  trials  there  have  been  for  high  treason,  would,  on  the  case, 
being  stated,  be  ready  to  take  it  for  granted  that  it  had  been 
long  ago  and  often  decided;  and  I  confess  that  I  was  struck 
with  surprise  when  on  examination  after  the  case  was  first  sta- 
ted, I  could  not  find  one  case  in  the  books  m  which  it  has  even 
come  before  the  court. 

It  seems  to  me  that  the  principal  difficulty  in  the  case  before 
us  arises  from  the  inaccuracy  of  the  writers  on  the  subject  in 
not  distinguishing  whether  the  baron  committing  treason  had  or 
had  not  had  issue  at  the  time  the  treason  was  committed;  and 
in  not  adverting  to  the  alteration  made  since  13  H.  7.  17.  b) 
the  statutes  26  and  33  N.  8. 

"  A  man  takes  wife  an  inheritrix — has  issue — commits  felo- 
**  ny  of  which  he  is  attainted;  the  king  pardons  him.  Keble  said 
"  he  shall  not  be  tenant  by  the  curtesy  by  reason  of  the  issue 
"  before  the  attainder,  but  if  he  have  issue  afterwards,  he  shall." 
13  //.  7.  17.  This  position  is  the  foundation  of  the  plaintiff's 
claim;  and  although  it  docs  not  appear  what  case  or  if  any  case 


20  CASES  IN  THE  SUPREME  COURT 

1 799.  "^^'•'^s  then  before  the  court,  and  therefore  it  may  be'  inferred  that 
Lessee  ^^is  is  a  mere  ohiter  dictum  of  Kehle^  yet  did  the  principle  of 
of  it  stand  unopposed,  although  it  has  received  no  judicial  con- 
Pemher-  firmation,  that  princijile  would  have  weight  with  me  in  favour 
^^^  of  the  plaintilf;  it  being  well  known  to  every  lawyer  that  very 
Hicks.  ^•^^Y  cases  Avhich  have  been  since  from  time  to  time  recog- 
nised as  law,  derive  their  original  authority  from  similar  dicta 
in  the  year  books.  But  let  us  consider  that  before  issue  "  If 
"  baron  and  feme  be  seised  in  fee  in  a  seignorie  m  the  right 
"  "^/^y^'"^'  baron  shall  not  receive  homage  alone;  but  he  and 
*'  feme  together:  but  if  baron  in  that  case  hath  issue  by  feme 
"  then  he  shall  receive  homage  alone  during  the  life  of  feme. 
"  And  the  reason  is  because  he  bi/  having-  issue  is  entitled  to  an 
"  estate  for  the  term  of  his  orun  life  in  his  own  right,  and  yet 
*'  is  seised  in  fee  in  right  of  his  wife;  so  as  he  is  not  a  bare  ten- 
"  ant  for  life.  But  if  feme  die  then  he  hath  only  but  an  estate  for 
"  life,  and  then  he  cannot  receive  homage."  Co.  Litt.  67.  a. 
So  "  if  feme  seised  of  lands  in  fee  simple  or  fee  tail  by  homage, 
"  taketh  baron  and  hath  issue^  then  baron  in  life  time  of  feme 
"  shall  do  homage  because  he  hath  title  to  have  the  tenements 
"  by  th'-  curtesy  of  England  if  he  surviveth  feme,  and  also  he 
"  holdeth  in  right  of  feme."  Litt.  sec.  90.  '■'■  After  issue  he  shall 
"  do  homage  alone  and  is  become  tenant  to  the  lord,  and  the 
"  avoxvry  shall  be  made  on  baron  only,  during  the  life  of  feme." 
Co.  Litt.  oO.  a. ;  and  "  as  soon  as  a  child  is  born  the  father 
*'  begins  to  have  a  pervianent  interest  in  the  lands;  and  this 
"  estate  being  once  vested  in  him  is  not  liable  to  be  defeated  by 
"  the  subsequent  death  or  coming  of  age  of  the  infant."  2.  Bl. 
Com.  127.  Again;  "  If  a  man  seised  of  lands  in  fee  hath  issue 
"  a  daughter  who  takes  baron  and  hath  issue^  the  father  dies, 
"  baron  enters,  he  shall  be  tenant  by  the  curtesy  albeit  -the  issue 
"  was  had  before  feme  was  seised.  And  so  it  is  although  the 
"  issue  had  died  in  the  life  time  of  her  father  before  the  descent 
"  of  the  land."  Co.  Litt.  29.  b.  So  "  if  a  woman  tenant  in  tail 
*••  general  takes  baron  and  hath  issue,  which  issue  dieth,  and 
"  feme  dieth  without  any  other  issue,  yet  baron  shall  be  tenant 
"  by  the  curtesy,  albeit  the  estate  tail  be  determined."  Co.  Litt. 
30.  a.  And  "  if  after  issue,  baron  makes  a  feoft'ment  in  fee,  and 
"  feme  dieth,  the  feoffee  shall  hold  during  the  life  of  baron, 
"  and  the  heir  of  feme  shall  not  during  his  life  recover  it 
*'  in  a  sur  cut  in  vita.''^  lb.  F.  N.  B.  194.  Why?  Not  because 


OF  PENNSYLVANIA.  21 

he  has  /ess  than  an  estate  for  life,  for  such  feofFment  would  be      1799. 

a  forfeiture  of  even  an  estate  for  life;  but  because  he  has  more,     \ 

'     Lessee 

he  is  also  seised  of  the  fee  in  right  of  feme.  of 

From  these  various  authorities  it  follows:  1.  That  by  having   PembeR- 
issue  the  estate  is  vested \n  baron  for  life.  2.  That  although  the       ^^^ 
issue  die  before  feme  is  seised,  yet  the  instant  she  becomes     ij.pkc 
afterwards  seised,  baron  becomes  entitled  to  the  estate  for  the 
term  of  his  own  life  in  his  own  right.  3.  Nay,  so  absolutely  and 
indcfeasibly  docs  the  estate  become  vested  in  baron  for  life  by 
having  issue,  that  the  determination  of  an  estate  tail  by  the  death 
of  feme,  the  last  tenant  in  tail,  does  not  affect  baron's  right.  It 
is  impossible  even  to  suppose  a  stronger  instance  to  demon- 
strate that  (fter  issue  no  circumstance  can  make  the  least  alter- 
ation in  baron's  vested  right  to  her  estate  for  life.   This  gives  a 
iull  answer  to  1  Ventr.  417.  that  an  alien  or  attainted  person 
cannot  take  by  any  act  in  law,  because  here  he  had  taken;  the 
estate  had  by  having  issue  become  vested '\\\  him  during  his  life. 

In  Godb.  323.  Coventry  attorney  general  says  that  "  Tenant 
'^  by  the  curtesy,  during  the  life  of  feme  cannot  convey  it,  but  he 
may  forfeit  it  by  way  of  discharge;"  and  he  cites  13  i^.  7.  17. 
but  the  only  words  on  the  subject  in  13  N.  7.  17.  are  those 
which  I  have  literally  translated  and  before  stated.  In  the  first 
point  the  attorney  general  is  contradicted  by  Co.  Litt.  30.  a. 
and  the  other  was  not  then  law. 

The  same  doctrine  is  laid  down  in  2  Bac.  219.  where  it  is 
said  that  persons  attainted  of  treason  or  felony  &c.  shall  not  be 
tenants  by  the  curtes\';  that  their  title  shall  never  arise  even  for 
the  benefit  of  the  king,  but  that  the  estate  of  the  wife  shall  be 
discharged  of  it  forever.  The  authorities  which  Bacon  cites  are 
Bro.  Tit.  Curtesy  pi.  15.  p.  250.  which  is  a  transcript  of  13  ^. 
7.  17.  there  quoted.  Staundf.  19G.  is  the  same,  and  he  quotes 
the  same;  and  Godb.  323.  He  also  cites  Co.  Litt.  291.  a.  3  Inst. 
43.  as  authorities  in  analogous  cases;  and  in  a  note  to  it  he 
states  the  worfls  of  Keble.  for  which  he  cites  7  Co.  25.  bv  which 
I  am  confirmed  in  my  want  of  confidence  in  the  accuracy  of 
the  best  abridgments,  as  authorities,  as  I  observe  that  in  neither 
of  those  pages  is  the  doctrme  laid  down,  which  he  states. 

So  that  all  the  authorities  respecting  the  discharge  of  ihi 
wife's  estate  rest  on  the  dictum  of  Ktblc.   In  Baco7i  it  is  said 
the  title  of  tenant  by  the  curtesy  shull  never  arise.  This  ex- 
]iression  shows  that  he  is  laying  down  the  law  where  a  man  com- 


22  CASES  IN  THE  SUPREME  COURT 

ir99.      mits  treason  before  issue ;  because  by  having  issue  the  estate 
Lesse~^''^*  '^'^^'^^n  and  is  vested  in  the  husband  for  the  term  of  his  own 
of         life  ;  it  has  therefore  become  absolute  and  indefeasible  during 
Pember-  his  life.  "  The  wife's  estate  shall  be  discharged  of  it  forever," 
From  what  time  is  this  discharge  to  operate  I   From  the  time  of 
Hicks.    ^'^^  treason,  or  from  the  death  of  the  wife?  The  expression  is 
so  general,  that  the  attainder  is  to  have  no  elfect  upon  the  estate 
of  the  wife.  If  the  dictum  of  Keble  13  H.  7»  17.  were  law,  this 
Would  be  the  necessary  consequence.  For  "  a  pardon  shidl  not 
*'  devest  any  interest  either  in  lands  or  goods  vested  in  the  sub- 
"jectj  neither  shall  it,  without  express  words  of  restitution, 
"  even  devest  any  title  from  the  king."  3  Mod.  101.  "  If  the 
"  king  present  to  a  benefice  on  being  entitled  to  it  by  simo- 
"  niacal  contract,  his  presentee  shall  not  be  removed  although 
"  the  simony  is   pardoned."   2  Mod.   52.  2  Hawk.  390.    On 
the  principle  therefore  of  IZ  H.  7.  17.  the  executors  of  Mrs. 
Galloxvay  may  recover  the  mesne  profits  from  the  time  the 
estate  was  taken  possession  of  by  the  commonwealth,  if  the  de- 
fendant has  been  in  possession  so  longj  nay,  she  herself  (as  he 
became  dead  in  law)  might  have  recovered  it  by  ejectment. 
But  that  this  is  not  the  construction,  that  this  dictum  cannot  be 
law  at  this  day,  is  clear  from  two  most  respectable  authorities. 
For  Lord  Hale  1  P.  C.  251.  and  Lord  Coke  in  3  Inst.  19.  lay  it 
down  that  where  "baron  is  seised  z'n  right  o/"feme  of  lands  of  in- 
"  heritance  and  is  attainted  of  treason,  the  king  shall  hold  during 
"  thecoverture.^^  It  is  not  stated  whether  issue  was  had  before  the 
treason  or  not ;  but  as  the  husband,  though  seised  in  fee  in  right 
of  his  wife,  yet  by  having  issue  is  entitled  to  an  estate  for  term 
of  his  own  life  i?i  his  own  rights  it  must  be  inferred  that  Lord 
Hale  and  Lord  Coke  confine  their  position  to  the  case  of  treason 
committed  by  baron  before  issue.  Let  it  not  be  said  that  there  is 
no  difference  whether  the  treason  be  committed  before  or  after 
issue  as  to  this  purpose:  by  issue  the  estate  of  bai'on  in  the  lands 
of  inheritance  of  feme  becomes  entirely  altered;  it  becomes  from 
that  vi\oxntXiX.vested  and  permanent  for  his  life.  Lord  Hale  adds, 
"  and  so  if  tenant  for  life  be  attainted  of  treason  the  king  hath 
"  the  freehold  during  the  life  of  the  party  attainted."  1  have  re- 
peatedly stated  that  by  having  issue  baron  is  entitled  to  an  estate 
for  term  of  his  own  life  in  his  own  right,  (he  is  become  tenant 
to  the  lord,  Co.  Litt.  30.  a.)  and  therefore  if  attainted  of  treason, 
the  king  hath  the  freehold  during  his  life. 


OF  PENNSYLVANIA.  ^S 

Again:  If  feme  tenant  in  tail  takes  baron,  and  he  becomes  en-      1799. 
titled  to  an  estate  by  the  curtesy,  which  he  does  by  having  issue     Z 
capable  of  inheriting,  not  only  his  wife  and  he,  but  he  alone  may         of 
make  a  good  tenant  to  the  praecipe  to  suffer  a  recovery  to  bar   Pember- 
the  intail.  Cases  Talb.  167.  Harg.  Co.  Lift.  326.  a.  where,  and  in        "^^^ 
a  note  to  Ca.  Talb.  said  to  be  a  more  accurate  statement  of     x-T.dfe 
Lord  Talbot'' s  argument,  it  is  said  in  general  terms, "That  baron 
"  alone  may  by  deed  only  and  without  any  fine  levied  by  feme 
"  convey  a  sufficient  freehold  to  the  grantee  to  make  him  a 
"  tenant  to  the  praecipe." 

The  last  but  not  the  least  consideration  is,  "  If  a  man  taketh 
"  feme  seised  of  lands  in  fee  and  hath  issue,  and  after  feme  is 
"  attainted  of  felony  so  as  that  the  issue  cannot  inherit  to  her, 
"  yet  he  shall  be  tenant  by  the  curtesy  in  respect  of  the  issue 
"  which  he  had  before  the  felony :  but  if  feme  had  been  attainted 
'*  before  issue,  albeit  he  hath  issue  afterwards  he  shall  not  be 
"  tenant  by  the  curtesy."  Co.  Litt.  40.  a.  Now  suppose  baron  and. 
feme  both  commit  treason  &c.  at  the  same  time  after  issue,  and 
are  attainted.  Baron's  vested  right  to  tenancy  by  the  curtesy  of 
her  estate  is  not  forfeited  by  her  attainder.  According  to  the 
conclusion  deduced  from  13  If.  7.  17.  her  estate  is  not  forfeited 
by  the  attainder  of  baron,  but  is  discharged  J  or  ever:  therefore  in 
such  case  it  is  not  forfeited  at  iUl ;  a  position  which  it  seems  to 
me  cannot  be  supported. 

I  will  take  another  position  and  consider  the  subject  from  a 
different  point  of  view.  I  will  lay  it  down  that  the  point  stated 
in  13  //.  7.  17.  was  then  the  law  of  the  land,  and  will  inquire 
whether  or  not  it  be  even  the  law  of  England  since  26  H.  8.  c. 
13.  and  33  H.  8.  c.  20.;  and  more  particularly  whether  since  the 
act  of  Assembly  by  which  Joseph  Galloivay  was  attainted,  and 
which  must  be  our  guide  in  forming  our  judgment  upon  the 
present  occasion,  the  words  of  Krblc  be  the  law  applying  to  i)cr- 
sons  attainted  by  this  act  of  Assembly  or  not.  "  By  the  com- 
"  mon  law  all  lands  of  inheritance  whereof  the  offender  is  seised 
"  in  his  own  right  and  also  all  rights  of  entry  to  lands  in  the 
"  hands  of  a  wrong  doer,  arc  forfeited  to  the  king  upon  attain- 
"  der  of  high  treason."  2  //aivi.  448.  2  Bar.  675.  It  may  there- 
fore be  inferred  that  though  the  husl)and  by  having  issue  is  enti- 
tled to  an  estate  in  the  lands  of  the  wife  for  term  of  his  own  life 
in  his  own  right,  yet  being  seised  in  fee  in  right  of  his  wife  such 
lands  arc  not  forfeited  tt>  the  king  bv  common  law,  on  tin- 


24  CASES  IN  THK  SUPREME  COURT 

1799.      attainder  for  high  treason;  but  she  shall  hold  them  discharged' 

Lessee     °^  ^^^^  right  to  tenancy  by  the  curtesy.  Lands  intailcd  were  not 

of         forfeitable  at  common  law  or  by  25  E.  3.  c.  2.  on  attainder  of  the 

Pember-  tenant  in  tail  for  high  treason,  saving  only  during  the  life  of  the 

'*"°'*        tenant  in  tail.  3   Iinit.   19.  By  -^tat.  26  H.  8.  c.  13.  every  per- 

HiCKs.     ^^^  attainted  of  high  treason  "  shall  forfeit  to  the  king  all  such 

"  lands,  tenements  and  hereditaments  which  he  shall  have  ofanij 

"  estate  of  inheritance^  use  or  possession^  by  any  tight^  title  or 

"  means.''''  It  has  been  adjudged  that  b}'  force  of  the  words  "  of 

"  any  estate  of  inheritance,"  estates  tail  are  forfeited,  because 

these  words  would  be  void  if  they  did  not  include  estates  tail; 

for  estates  in  fee  simple  were  forfeited  before.    2  Hawk.  452. 

2  Bac.  580.  Co.  Lift.  372.  L   And  by  stat.  33  ff.  8.  c.  20.  "  If 

"  anv  person  is  attainted  of  high  treason  by  common  law  or 

"  statutes;  every  such  attainder  by  the  common  law  shall  be  of 

'"'  as  good  strength,  value,  force  and  effect,  as  if  it  had  been  done 

"  by  authoritv  of  Parliament.   And  the  king  shall  have  as  much 

"  benefit  and  advantage  by  such  attainder  as  well  oiuses^  rights^ 

**  entries^  co7iditions,  as  possessions,  reversions,  remainders  and 

"  all  other  things^  as  if  it  had  been  done  and  declared  by  autho- 

"  ritv  of  Parliament." 

The  words  of  each  of  these  acts  of  parliament  are  more  exten- 
sive than  the  words  of  forfeiture  by  the  common  law.  The 
words  in  the  first  act  have  been  held  to  extend  to  estates  tail. 
The  words  in  the  second  act  will  include  tenancy  by  the  curtesy; 
for  baron  by  having  issue  is  entitled  to  an  estate  for  term  of  his 
own  life  in  his  own  right. 

The  words  of  the  act  of  assembly  by  which  foseph  Galloxvay 
was  attainted  are  still  far  more  extensive  than  the  words  of  these 
statutes.  The  legislature  could  not  have  used  more  compre- 
hensive general  words  to  embrace  the  subject  matter  in  ques- 
tion. It  necessarily  follows  that  Joseph  Galloxvay  forfeited  all 
his  estate  and  interest  in  the  premises  for  the  term  of  his  own 
life.  Therefore  from  either  point  of  view,  and  especially  from 
the  last,  my  opinion  is  that  judgment  be  given  for  the  defendant. 

Judgment  for  Plaintiff. 


OF  PENNSYLVANIA  t: 


0 


Myers  ^^ffm^^  Uric M.  ^^Q^* 

THIS  was  an  action  of  debt  on  a  bond,  brougHt  in  the  Com-  npcember 
mon  Pleas  of  Dmiphin  cowiMx  lo  November  term  ir92;28ib. 
and  the  plea  was  payment,  with  leave  to  give  in  evidence  a  pay-  jf  ^^^  oanil- 
ment  under  a  foreign  attachment.  slieo  in  afo- 

Upon  the  trial  of  the  cause  before  7'eates  and  Smith  Justices,  j^^^^^^  f^,,^ 
at  a  Nisi  Prius  in  Octeber  1799,  the  following  facts  were  in  evi-f'''*".'"  V^^'ie 
dence.  A  foreign  attachment,  returnable  lo  February  ttrva.  1790,jJbt  attach- 
issued  at  the  suit  of  James  Kelly  assignee  oi  Abraham  Ebersoll^^^^  witliout 
agamst  Myers  the  present  plvuntill;   by   virtue  or  which  the  polled  so  to 
amount  of  a  bond  owing  to  Myers  but  not  yet  due,  was  attach-*^"  by  due 
ed  in  the  hands  of  Urich  the  obligor.  In  this  attachment  no  law,  and 
declaration  was  filed,  and  judgment  was  rendered  in  the  fol- witliout  le- 

1        •  /<  «^        1  1        r    r.  7        •        1  qaii'inij  ihe 

lowing  August,  On  the   18th  oi  September  in  the  same  year  stipulation 
Urich  paid  Kelly  nearl}'  the  whole  amount  attached.  A  scire'^^'^^^^'^^  ^J' 
facias  to  August  term  1791  then  issued  against  the  garnishee, s.mhU,  it 
upon  which  judgment  was  rendered  in  November^  with  a  stay",'"  ""'/j'^- 
of  execution  during  six  weeks;  alter  the  expiration  oi  which  iVom  tlie  oi-i 
time,  liut  without  execution,  the  residue  of  the  bond  was  paid  by  f^'"^*  ^^^^^' 
Urich.  No  security  however  was  found  according  to  the  act  of 
Assembly,  1  St.  Laxvs  60.  to  answer  to  Myers  it  within  a  year 
and  a  day  he  should  disprove  or  avoid  the  debt  &c. 

The  plaintiff  Mifers  proved  a  good  defence  to  the  demand  of 
Kelly;  and  it  appeared  to  the  jury  that  by  articles  of  agreement 
l)etwcen  Myers  and  Kelly ^  Kelly  had  covenanted  to  pay  to  Ebcr- 
soil  the  very  bond  upon  which  he  as  assignee  had  brought  the 
foreign  attachment.  A  verdict  was  accordingly  taken  for  the 
plaintiff  subject  to  the  opinion  of  the  court  in  bank,  wliether 
such  a  payment  as  Urich  had  proved  was  a  good  defence  to  the 
demand  of  Myers. 

Duncan  for  the  plaintiff.  The  precipitate  and  voluntary  pay- 
ment by  Urich  before  execution,  or  scire  facias,  or  the  condi- 
tional security  being  entered,  was  made  in  his  own  wrong.  Un- 
less the  proceedings  were  regular  the  garnishee  could  not  have 
been  compelled  to  pay;  and  not  being  compelled  to  pay,  this 
must  assume  the  character  of  any  other  voluntary  payment  to 
a  third  person    If  we  adopted  special  pleading  in  its  rigour,  the 

Vol.  •  D 


2^  CASES  IN  THE  SUPREME  COURT 

1801.      defendant    Mould    be  forced  to  set  oat  all  the   prucecdiiT^s 
■  ,  (  ,  in  the  attachment,  Baker  v.  Hill  («  ;  that  the  act  had  been 

7-.  Strictly  pursued,  .SW/r/JC  v.  Toung  ''/;);  that  pledges  had  been 
Uricii.  found,  1  Brown/.  62.  D/jcr  196.  pi.  42.;  and  that  execution  had 
issued  upon  the  judgment,  Spink  v.  Tenant  (c^.  If  this  plea 
were  effectually  traversed,  the  garnishee  would  be  compelled  to 
pay  the  money  over  again;  and  he  is  bound  to  the  same  proofs 
under  his  plea  of  payment  that  would  be  required  under  the 
special  plea.  It  is  essential  that  the  pavment  should  be  drawn 
from  the  garnishee  by  execution  alone;  for  from  the  time  of  the 
execution  the  year  and  day  runs,  Lervkner  v.  Huntley  (d);  and 
if  the  money  be  paid  before,  by  so  much  is  the  period  abridged 
within  which  the  defendant  may  resort  to  the  pledges.  The  law 
is  with  Myers^  because  Urich  has  no  legal  defence  unless  he  was 
compelled  by  due  process  of  law  to  pay  Kelly;  the  equity  is  iUso 
with  him,  because  Myers  owed  nothing  to  Kelly^  Kelly  was 
trusted  by  Urichj  and  Urich  should  support  the  injury  of  his 
own  act. 

Ingersoll  who  was  to  have  argued  for  the  defendant  gave  up 

the  cause;  and 

I 

Per  Curiam.  The  ground  of  the  defence  is  that  Urich  was 
compelled  by  due  course  of  law  to  pay  the  amount  of  the  bond 
to  the  plaintiff  in  the  foreign  attachment;  but  the  fact  is  that  he 
was  not  compelled  by  due  course  of  law;  for  he  could  not  be 
legally  compelled  unless  the  proceedings  against  him  were 
regular,  and  the  security  required  by  the  act  of  Assembly  wa.s 

duly  entered. 

Judgment  for  Plaintiff. 

{a)  3  Kcb.  62r.  (c)  1  Koll.  Rep.  105. 

(h)  LutK.  985.  ((/)  Cro.  Eliz-  713 


OF  PENNSYLVANIA.  27 

1801. 
Jordan  against  Meredith. 

Monday, 
'        Dccciiibcr 

A  SUFFICIENT  number  of  special  jurors  not  appearing  gsu,. 
in  this  cause,  a  tales  was  awarded;  whereupon  the  trial  If  a  juror  is 

,.      r        1         1    •      -ir    A  struck  from 

proceeded,  and  the  jurv  tound  a  verdict  tor  the  plaintilt.  A  mo-  ^i^g  special 

tion  for  a  new  trial  was  then  made  by  M  Levi,'  for  the  defendant,.! ,»"'>•  list,  and 

n    t       •  'i      1      1  I  1  tl>«n  sworn 

upon  the  ground  that  o;ie  of  the  jurors  who  had  been  struck  .^j,  ^  ^alcs- 

from  the  special  iurv  list  by  the  defendant  was  sworn  as  a  man  with  the 
talesman  and  tried  the  cause;  which  circumstance  he  argued „f  the  party 
was  a  sufficient  ground  for  a  new  trial,  although  the  verdict  ^\lio  struck 
might  in  other  respects  be  satisfactory  to  the  court.   He  cited  cannot  on 
Parker  v.  Thornton  (a),  and  Himgate  v.  Hamond  (b).  But        ^Jj-^J'^i'tJIc 

«  verdict. 

The  Court  being  satisfied  that  the  error  was  known  to  the 

defendant  at  the  time  it  was  committed,  he  himself  having 

struck  the  juryman  from  the  list,  thought  the  objection  came 

too  late,  and  refused  a^KuIe. 

(a)  2  Ld.  Bay.  1410.  (/•)  Cro.  Eliz.  188. 


Levy  against  The  PrcsidtMit,  Directors  and  Compaiiy     180^ 


T 


of  the  Bunk  of  the  United  States.  Monday, 

May  3d. 

HIS  cause  was  tried  at  Nisi  Prius  after  March  term  1 802,  J'^f^^^^^''^^"'' 

hcior it  S hi f)f)en  C.  J.  and^////V/i  J.  when  the  following  facts ca.sh,  nuule 
,  .  ■  ,  b\  a  Uu:il;  in 

ippeared  m  evidence.  tlu- private 

Josrjjh  Thomas  passed  awa}-  to  the  plaintiil"  a  check  upon  hank  b.ok  of 
;iie  IJank  of  the  Unilt  d  States 'for  S  2G(J0,  dated  the  31st  yw/i^^';j';,|;';J[|.^,'^'i^ 
1798,   and   purporting  to  be  drawn  by  Charles  Wharton    ini)aymont; 
favour  of  Joseph   Thomas  or  bearer.   On   the   3d  of  -^".?'"'^'^  check  is  a 
1798,  between  eleven  and  one  o'clock,  the  check  was  presented I'-riicm. of 
at  Bank  !)y  Mr.  J.evifs  clerk  ;  and  was  entered  by  the  receiving |,„i^|^.,.  ^^.^^ 
teller  to  Mr.  Lcvifs  credit  in  his  bank  l)ook  as  cash.   It  was  also  i.i^norant.  the 
entered  on  the  scratchc  r  of  the  Bank,  and  in  the  cash  book,  and  ^,j  .,,„.,  ji^^, 

I'iss.  Jt  sieiii: 
that  the  acceptor  of  a.  forpcd  1)111  is  hound  to  pay  it,  not  upon  the  principle  that  his 
acceptance  has  i^ivcn  a  en  (lit  lo  thf  hill,  Imt  liccansc  it  is  hia  <hity  to  know  the  draw*  r'.-s 
han*l  writinp  whii  h  he  is  I'rt-chidi  d  from  disputing'-.  If  a  fort^cd  rlicck  is  credilifl  as  c.isli 
in  the  holder's  bank  book,  and  :itier«iirds  upon  boin^  infornieil  of  the  furq;eiy,  and  under 
1  mistake  of  his  rij^lit:;  he  ajjre'js  that  if  the  clicck  i'.  rvally  a  for^^rry  it  \i  nodcpi'slt,  lie  is 

■t  bound  by  the  agrccmrnt. 


28  CASES  IN  THE  SUPREME  COURT 

1802.      "^^'^s  credited  to  Mr.  Levy  and  charged  to  Charles  Wharton^  ac- 
"^  cording  to  the  usage  of  that  institution.   On  examining  the 

T.  cliecks  of  that  day  between  three  and  four  o'clock  in  the  after- 
Bank  U.  S.noon  as  was  customarv,  this  check  was  discovered  to  be  a  for- 
gery; the  credit  to  Mr.  Levy  in  the  cash  book  of  the  Bank,  and 
the  charge  to  Mr.  Wharton  were  respectively  struck  out,  and 
the  entrv  in  the  scratcher  left  as  it  was.  This  was  proved  to  be 
the  usual  mode  of  coiTecting  such  mistakes  in  the  Bank.  As 
soon  as  the  discovery  Avas  made,  one  of  the  clerks  of  the  Bank 
was  sent  to  the  plaintiff  to  request  his  own  check  in  lieu  oi  the 
other.  The  plainiiif  asked  the  reason  of  this  request,  and  was 
told  bv  the  clerk  that  Charles  Wharton  had  not  money  enough 
in  Bank,  although  the  fact  was  otherwise.  The  plaintiff  replied 
"  That  is  nothing  to  me."  The  clerk  then  told  him  the  check 
was  a  forgery.  The  plaintiff  was  much  surprised  aud  said  he 
would  "  take  till  the  next  day  to  consider  Of  giving  another 
"  check  in  lieu  of  it."  The  clerktold  him  he  might  as  well  give 
it  then,  for  although  not  authorized  by  the  cashier,  he  was  cer- 
tain the  plaintiff's  check  would  not  be  received  at  Bank  on  that 
deposit.  The  plaintiff  then  made  answer  "  On  that  score  we 
"  are  perfectly  agreed.  If  the  check  is  a  forgery,  which  is  all  I 
"  wish  to  ascertain,  it  is  no  deposit."  On  the  next  day  Mr.  Levy 
told  the  Bank  that  he  would  not  refund  the  money,  and  that  he 
would  not  give  them  his  bank  book  for  the  purpose  of  erasing 
the  entry.  He  then  drew  a  check  on  the  Bank  for  S  2600,  the 
amount  of  this  deposit  (an  undisputed  balance  having  been 
previously  paid  to  him)  which  was  regularly  protested  lor  non- 
payment, and  this  suit  immediately  instituted  to  recover  the 
sum  in  question  as  money  had  and  received  and  mc^ney  lent 
and  advanced.  Thomas\'  forgeries,  of  which  this  was  said  to 
be  one,  were  known  by  several  persons  on  the  31st  ^aly  and 
1st  Anq-Kst^  but  not  generally  disclosed  until  the  afternoon  of  the 
3d  August,  in  the  evening  of  which  day  he  assigned  his  pro- 
perty for  the  benefit  of  his  creditors,  and  absconded. 

M'-Keaii  (attorney  general),  Dallas^  and  Ingersoll^  for  the 
plaintiff;  Raxvle  and  Lervis,  for  the  defendants. 

For  the  plaintiff  it  was  contended  that  his  claim  to  a  recovery 
of  the  money  was  good  upon  several  grounds.  1st,  The  entry 
in  his  bank  book  was  equivalent  to  an  actual  payment  by  the 
Bank,  or  to  a  deposit  of  cash :  at  all  events  it  was  an  acceptance 


OF  PENNSYLVANIA.  09 

which  made  the  Bank  liable  for  the  money.  2dly,  The  subse-      1802. 
quent  erasures  by  the  Bank  were  wholly  irregular,  and  as  the      Z  "" 

act  of, one  party,  could  have  no  effect  upon  the  rights  of  the         x>. 
other.  If  the  alteration  could  be  made  tlirec  hours  after  the  Bank  U.  S. 
entry,  it  could  be  made  at  any  distance  of  time  whatever. 
3dly,  The  plaintiff's  language  proceeded  from  a  misconception 
of  his  rights ;  it  was  not  so  deliberate  an  act  as  the  law  would 
construe  intaa  renunciation  of  them. 

1.  The  check  was  entered  as  a  deposit  of  cash  in  the  plain- 
tiff's bank  book.  The  uniform  practice  of  the  Bank  and  the 
universal  understanding  of  its  customers,  shew  that  substan- 
tially there  is  not  the  smallest  difference  between  such  an  entry 
founded  upon  a  check,  and  one  that  is  made  for  a  deposit  of 
specie.  For  the  convenience  of  the  institution  and  the  dispatch 
of  business,  one  clerk  in  this  respect  performs  the  office  of  two; 
and  instead  of  receiving  the  money  for  the  check  and  handing 
it  over  to  be  deposited  and  entered,  the  bearer  finds  both  opera- 
tions blended  at  one  desk  where  the  check  is  acknowledged  to 
be  cash,  and  treated  as  such  by  the  enu-y.  The  entry  is  the  same 
as  a  receipt  for  the  cash.  Leach  189.  And  if  it  was  merely  a 
transfer  of- so  much  money  in  the  bank  from  the  account  of 
Wharton  to  that  of  the  ])laintiff,  it  was  a  payment.  Bolton  v. 
Richard.  (a)if\\c  Bank  having  thus  paid  the  check  if  it  has 
aimed  /OUt  to  be  a  forgery  they  must  abide  by  the  loss;  and 
they  cannot  iadirectly  compel  a  repayment  from  us  by  with- 
holding our  deposit.  The  acceptor  of  a  forged  bill  of  exchange, 
who  has  paid  it,  cannot  recover  back  the  money  from  the 
bona  fide  holder;  still  less  where  it  has  been  paid  at  once  with- 
out any  acceptance.  Price  v.  Neal.  {U)  The  law  is  the  same 
where  payment  is  made  under  a  forged  bond  ;  the  payer  acts  at 
his  peril.  Allen  v.  Duiulas;  (c) 

But  the  result  is  siill  in  the  plaintiff's  favour,  if  we  consider 
this  entry  as  an  acceptance  of  the  check,  which  in  every  ma- 
terial respect  is  an  inland  bill  of  exchange,  and  is  declared  upon 
as  such.  li'jchm  v.  Sterlinrf.  (c/)  Voy  by  a  series  of  cases,  some 
of  which  are  of  long  standing,  and  the  rest  of  the  highest 
modern  authority,  the  acc(  |)tor  of  a  forged  bill  of  exchange  i» 
liable  to  the  bona  fide  holder,  whether  the  bill  has  been  ncgo- 

(«)  f>  n.  cf  E.  139.      •  (c)  3  D.Uf£.  182, 

(^)  3  Burr.  1.355. 1  H/'  Ml.  S'JO  C«<)  7  X>.  U"  i^.  4."# 


30  CASES  IN  THE  SUPREME  COUkT 

1802.  tiatecl  after  acceptance  or  not  j  and  upon  this  most  reasonable 
^Levy  principle  that  the  acceptor  is  presumed  and  bound  to  know  the 
V.  drawer's  hand  writing,  and  to  take  that  knowledge  upon  him- 
Bank  U.  S.  self.  In  the  case  of  jfimifs  v.  Faivlcr  et  al.  (a)  which  was  an 
action  by  the  indorsee  of  a  bill  against  the  acceptor,  the  de- 
fendant offered  to  prove  it  a  forged  bill  by  calling  persons  t» 
swear  that  they  did  not  believe  it  to  be  the  drawer's  hand  wait- 
ing. But  Lord  C.  J.  Rayynond  refused  the  evidence,  and 
strongly  inclined  that  even  actual  proof  of  forgery  would  not 
excuse  the  defendants  against  their  own  acceptance.  So  in 
Price  V.  Neal^  Lord  Mansjield  said  it  was  incumbent  upon  the 
acceptor  to  be  satisfied  that  the  bill  drawn  upon  him  was  the 
drawer'' s  hand  before  he  accepted  it.  In  Smith  v.  Chester,  (b) 
Bidler  J.  says  "  When  a  bill  is  presented  for  acceptance,  the 
"  acceptor  only  looks  to  the  hand  writing  of  the  drawer,  which 
"  he  is  afterwards  precluded  from  disputing;  and  it  is  on  that 
"  account  that  an  acceptor  is  liable  even  though  the  bill  be 
"  forged;"  and  in  Master  v.  Miller^  (c)  the  same  judge  quotes 
this  doctrine  as  having  proceeded  from  an  eminent  and  learned 
person  in  another  place,  "  for  half  a  century  there  have  been 
"  various  cases  which  have  left  the  question  of  forgery  un- 
"  touched.  If  a  bill  be  forged,  the  acceptor  is  bound."  "  When 
*'  the  drawee  accepts  a  bill,"  says  Lord  Kenyon  in  fordaii  e  v. 
Lashbroke^  (d)  "  he  admits  that  the  bill  is  signed  by  the  per- 
"  son  by  whom  it  professes  to  have  been  made;"  and  most 
inconvenient  would  it  be  if  this  admission  were  not  enforced 
against  the  acceptor  who  is  in  a  state  of  complete  privity 
with  the  drawer  as  to  the  transaction  upon  which  the  bill  is 
founded,  and  who  has  opportunities  peculiarly  his  own  of 
knowing  the  genuineness  of  the  signature.  It  is  indeed  a  ques- 
tion of  laches  between  the  holder  and  the  acceptor.  "  If  the 
"  bill  is  not  really  drawn  by  the  person  whose  name  appears 
"  upon  it  as  the  drawer,  to  whom  is  negligence  or  want  of  cau- 
"  tion  to  be  imputed  ?  To  the  acceptor  certainly.  And  therefore 
"  if  the  bill  be  in  fact  forged,  it  is  he  who  must  sustain  the  loss." 
Kyd  071  Bills  204.  It  may  be  said  that  the  ground  upon  which 
this  liability  of  the  acceptor  has  been  maintained,  is  the  credit 
which  he  has  given  to  a  negotiable  instrument;  and  that  the 

(a)  2  Stra.  946.  <e)  \  B.  iSf  E.  33.5. 

(i)  lD.i:;E.  635.  {d)  7  D.  ^Jf  E.  &)\. 


OF  PENNSYLVANIA.  31 

principle  of  the  various  decisions  is  not  met  by  the  case  before      1802. 
the  court,  or  bv  anv  case  except  that  of  a  holder  to  whom  the      -t^xv 
bill  has  been  negotiated  after  acceptance.   But  although  this         v. 
argument  vnay  be  countenanced  by  the  case  of  Jeiiys  v.  Faxvler^  Bank  U.  S. 
where  Lord  RaymoJid  appears  to  think  forgery  would  be  no 
answer  in  the  acceptor's  mouth,  because  his  acceptance  "  had 
*'  giveii  the  bill  a  ctedit  to  the  indorsee^'*  yet  the  principle  is  put 
on  a  ver\'  different  ground  by  Lord  Mansfield^  Lord  Keni/on, 
and  Justice  Bidler;  the  acceptor  is  liable  because  he  is  bound 
to  know  the  drawer's  hand  writing,  and  after  his  acceptance  is 
precUult'd  from  disputing  it.  The  cases  of  Price  v.  Ntal,  and 
Smith  V.  Chester^  are  decisive   to   this   point.    The  Bank  is 
situated  in  this  particular  as  though  it  had  permitted  a  trans- 
fer of  its  stock  under  a  forged  letter  of  attorney;   a  trustee 
whether  a  private  person  or  a  body  corporate  must  see  to  the 
reality  of  the  authority  empowering  them  to  dispose  of  the 
trust  money.  Ashby  v.  Blackxuell.  (ci) 

2.  The  erasure  was  an  act  that  by  itself  would  subject  the 
books  of  an  individual  to  just  suspicion.  It  is  manifestly  an 
irregular  j)ractice  to  erase  entries  which  hav^e  been  advisedly 
made  at  the  instance  of  third  persons,  and  thus  to  attempt  a 
change  of  their  rights.  If  an  error  of  this  kind  existed  it  should 
be  corrected  by  a  post  entry  which  presents  the  whole  matter  in 
an  unmutilated  form.  But  even  if  the  erasure  were  legal  it  is 
idle  to  say  that  the  plaintiff's  claim  is  destroyed  by  it.  Is  it  un- 
derstood in  practice  that  the  acts  of  the  Bank  are  incomplete 
until  thiy  have  had  time  for  investigation  after  bank  hours? 
Can  it  bt  pretended  that  after  the  entry  in  the  bank  book,  some- 
thing is  wanting  to  complete  the  party's  title  to  the  money?  On 
the  contrary  it  is  notorious  that  he  may  draw  for  it  the  next 
moment.  The  transaction  was  cljsed  as  it  respects  the  plaintiff 
at  the  instant  of  the  entry;  and  most  complex  and  inconvenient 
would  be  the  operations  of  a  Bank,  and  fatal  to  its  own  interests, 
if  a  different  doctrine  should  prevail.  Sending  the  clerk  to  de- 
mand another  check  in  lieu  of  the  forgery  is  conclusive  to  shew 
th;ii  lhr\-  looked  upon  tlie  erasures  to  be  unavailing. 

J.  There  is  no  bar  then  to  the  plaintiff's  recovering  Ijut  iiis 
conversation  with  the  clerk;  and  it  would  be  indeed  a  rare  inci- 
dent in  the  administration  of  justice,  if  such  a  conversation  pro- 

(rt)  AnU)t.  50.1 


$Q  CASES  IN  THE  SUPREME  COURT* 

1802.      ceeding  from  great  and  painful  surprise  should  be  construed 
I -^  .      '"to  the  deliberate  renunciation  of  a  riglit.   It  was  however  a 
,,,         conversation  in  which  the  clerk  thought  proper  to  use  a  disho- 
R.uik  U.  S,  nest  artifice  to  procure  the  money  from  the  plaintiff.  He  stated 
what  was  not  the  truth  as  to  Mr.  IVhartOTi's  account.  His  design 
was  to  entrap  the  plaintiff,  and  he  has  probably  listened  to  his 
language  with  this  improper  view.    Hut  what  were  the  expres- 
sions of  Mr.  Zct';/?  Were  thty  an  opinion  suddenly  formed 
upon  an  imperfect  consideration  of  the  facts?  This  certainly 
was  the  case.  And  can  it  be  pretended  that  it  amounts  to  the 
release  of  a  right,  to  an  assent  to  every  thing  which  the  bank 
had  done  after  the  detection  of  the  forgery  ?  But  if  it  amounts 
to  a  promise  to  repay  the  bank,  it  avails  nothing  under  the  cir- 
cumstances of  the  case.  It  was  made  under  a  palpable  mistake 
of  the  plaintiff's  rights,  and  is  not  binding  upon  him.  This 
is  so  evidently  the  law  that  in  Blesard  v.   Hirst ^  {ci)   where 
the   holder  of  an  inland  bill  neglected  to  give  notice  of  its 
nonacceptance  to  the  drawers,  and  after  the  time  of  payment, 
which  was  also  refused  by  the  drawee,  one  of  the  drawers  cal- 
led at  the  holder's  house  in  his  way  to  Leeds  and  told  him  he 
would  "  take  up  the  bill  as  he  came  back,"  but  upon  his  return 
said  he  was  advised  that  he  was  not  bound  to  do  it,  it  was  held 
that  the  holder  could  not  recover,  and  the  promise  by  the 
drawer  was  not  even  noticed  bv  the  counsel,  or  in  the  opinion 
of  the  court.    So  in  Goodall  v.  Dolley^  (b)  where  there  was  an 
offer  by  the  indorser  of  a  bill  similarly  situated,  to  pay  it  by 
instalments,  the  court  expressly  decided  that  as  it  was  made 
under  an  ionorance  of  all  the  circumstances,  he  was  not  bound. 
If  money  be  paid  under  a  mistake,  which  there  is  no  ground  to 
claim  in  conscience, it  maybe  recovered  back  in  an  action  for  mo- 
neyhadand  received.  Bizev.  D'/ckason.  (c)  And  in  Evans  v.  Lle- 
xvellyn^  ( d)  even  a  conveyance,  obtained  from  persons  uninformed 
of  their  rights, though  the  master  of  the  rolls  thought  the  case  be- 
fore the  court  did  not  present  any  proof  of  actual  fraud  or  impo- 
sition, was  nevertheless  set  aside  as  improvidently  entered  into. 

For  the  defendant,  it  was  contended :  1 .  That  the  entry  in  the 
plaintiff's  bank  book  did  not  amount  to  payment,  and  was  clearly 
made  by  mistake.  2.  That  the  acceptor  of  the  bill,  though 
indeed  a  check  is  not  a  bill,  may  upon  the  ground  of  forgery, 

{a)  5  Burr  2670.  (c)  1  D.  iST  E.  285. 

(/')  I  D.l^  E.  7\?.  {d)  2  Bra.  Ca.  15CI 


OF  PENNSYLVANIA.  33 

resist  payment  to  any  one  to  whom  the  acceptance  has  not  given      1802. 
the  bill  a  credit,  or  in  other  words  where  the  bill  is  not  nego-      i^^ 
tiated  after  acceptance.  3.  That  the  plaintiff  claimed  through  a         r. 
felony.  4.  That  the  plaintiff's  conversation  amomited  to  a  pro-  Bank  U.  S. 
mise  to  refund,  and  prevented  the  bank  froni  taking  steps  to 
detain  Thomas^  whereby  the  money  was  lost. 

1.  The  usage  of  the  bank  is  presumed  to  be  known  to  its 
customers,  and  forms  an  ingredient  in  every  transaction  between 
them.  The  Bank  is  known  to  examine  ever\'  day  the  checks 
which  have  been  received  during  the  hours  of  business,  and  to 
correct  bv  the  kind  of  erasure  given  in  evidence,  the  casual 
misentries  which  have  occurred.   It  is  partly  for  the  security  of 
the  institution,  but  it  is  principally  to  do  perfect  justice;  and 
the  whole  time  that  elapses  between  the  opening  of  the  Bank 
and  the  end  of  the  examination  is  therefore  but  a  point  of  lime 
in  contemplation  of  the  parties.  The  entry  was  subject  to  this 
correction,   k  was  a  mere  transfer  of  credit^  which  it  is  true  is 
the  same  as  a  receipt;  but  a  receipt  in  full  is  no  discharge  if 
given  by  mistake;  and  therefore  that  which  is  the  strength  of 
the  plaintiff's  case  in  one  particular  is  the  overthrow  oi  it  in 
another;  for  we  claim  the  operation  of  all  the  authorities  read 
upon  his  last  point,  to  resist  his  demand  in  the  very  threshold; 
the  entry  was  evidently  a  mistake.  There  is  however  a  wide 
difference  between  a  transfer  of  credit,  and  a  payment;  for  the 
law  is  perfectly  setdcd  that  if  money  be  paid  by  mistake  to  the 
agent  of  a  third  person,  who  passes  it  to  the  credit  of  his  prin- 
cipal against  a  debt  which  the  principal  owes  him,  and  thus 
closes  the  account,  yet  it  is  not  a  payment,  but  may  be  reco- 
vered back  in  an  action  against  the  agent.  Buller  v.  Harri- 
son, (o)  Nor  is  this  principle  opposed  by  the  case  of  Boltoii 
V.  Richard;  for  there  the  defendant  gave  the  plaintiff  a  check 
upon  their  common  banker,  requiring  him  to  pay  on  demand  a 
certain  sum  in  a  bill  at  three  months.  The  plaintiff  did  not  Lake 
a  bill,  but  accepted  a  transfer  of  credit  from  the  defendant's  ac- 
count to  his  own,  and  the  banker  failed  before  the  check  became 
due.   In  an  action  against  the  drawer  of  the  check  upon  the  ori- 
ginal demand,  the  transfer  was  held  to  be  payment  because  the 
plaintiff  had  obviously  agreed  to  consider  it  as  such.  Ashby  v. 
^/ac/t7vt'//' proceeded  in  some  measure  on  the  ground  that  the 
Bank  had  deviated  from  their  own  rule  with  regard  to  the  forged 

(a)  Cov-p.  5G5. 

Vol.  I.  E 


34  CASES  IN  THE  SUPREME  COURT 

1802.      power  under  which  they  suffered  their  stock  to  he  transferred, 

— Z — ~ — for  in  Ilili/ard  v.  The  South  Sea  Compony^  (d)   Sir  J.  Jekyl 

^,,         held  that  the  company  was  but  a  mere  instrument  or  conduit 

Bank  U.  S.  pipe,  and  that  it  was  the  purchaser's  concern  to  inquire  into  the 

letter  of  attorney. 

2.  But  if  this  entry  is  considered  to  be  an  acceptance,  still 
it  is  competent  to  the  acceptor  to  deny  the  drawer's  hand  writing 
against  every  one  but  him  to  whom  the  bill  has  been  negotiated 
after  acceptance.  All  the  cases  which  are  so  reported  as  to  be 
■worthy  of  credit,  put  it  upon  the  ground  that  the  acceptor  has 
given  a  credit  to  the  bill.  In  the  leading  case  of  Jenya  v.  Faw- 
ler^ivom.  Strange^  Lord  Raymond  vfovXA  not  admit  evidence  to 
be  given  that  the  drawer's  name  vvas  forged, y/-o/?z  the  danger  to 
negotiable  notes;  and  he  inclined  that  actual  proof  of  forgery 
>vould  not  excuse  the  defendants  against  their  own  acceptance, 
rvhich  had  given  the  bill  a  credit  to  the  indorsee.  This  was  there- 
fore the  case  of  an  indorsee  after  acceptance.  That  Lord  Ray- 
mond Wvciiic^i  this  principle  to  the  particular  case  is  evident  from 
Wilkinson  v.  Lutxvidge,  (Jb)  decided  by  him  in  the  prior  reign, 
where,  as  between  the  acceptor  and  the  plaintiff  who  was  the 
holder  before  acceptance,  he  lield  that,  the  former  was  not 
concluded  from  shewing  the  forgery;  the  acceptance  being 
in  his  opinion  merely  presumptive  evidence  ol  the  drawer's 
hand.  Price  v.  Ncul  was  also  the  case  of  an  indorsee  after 
acceptance,  and  therefore  comes  within  the  rule  of  fenys  v. 
Fawler.  Smith  v.  Chester  contains  to  this  point  only  the  dictum 
of  judge  Bidler^  and  not  delivered  with  reference  to  the  dis- 
tinction we  take.  When  he  repeats  the  same  sentiment  in 
Master  v.  Miller  it  is  again  his  dictum;  and  in  his  general  ideas 
in  that  case  he  was  opposed  by  the  whole  court  of  King's  Bench 
whose  judgment  was  afHrmed  in  error.  It  certainly  may  be  true 
under  some  circumstances  that"  if  a  bill  be  forged  the  acceptor  is 
"  bound;"  but  wherever  the  question  hasbeen  solemnly  discussed 
the  proposition  is  limited  according  to  our  argument;  so  that  it 
is  impossible  for  the  plaintiff's  counsel  to  bring  any  thing  but 
dicta  to  their  suppoit,  while  the  doctrine  of  the  cases  which  are 
adverse  to  them  has  been  adopted  by  more  than  one  elementary 
writer;  3  Woodeson  115.  Kyd  202.;  and  if  instead  of  resorting 
to  an  arbitrary  and  in  many  cases  an  untrue  position  that  the 
drawer's  hand  must  be  known  to  the  acceptor  and  not  to  the 

.(«)  2 P.  Trmc.  76.  (b)  Stra.  648. 


OF  PENNSYLVANIA.  35 

holder,  we  adopt  the  reasonable  and  honest  rule  that  so  far  as      1802. 
the  acceptance  has  given  the  bill  a  credit  the  acceptor  shall  be      Levy 
bound,  we  introduce  a  harmony  into  the  system  which  recon-         ^. 
ciles  the  cases  with  the  dicta,  and  an  equity  which  tempers  the  ^^^*^     •  ' 
severity  of  the  law  in  its  operation  upon  an  innocent  person. 

If  the  case  is  resolved  into  a  question  of  laches,  what  com- 
parison is  there  between  the  conduct  of  the  plaintiff  who  held 
this  check  in  his  hands  three  days  after  it  was  due,  and  that  of 
the  bank  whose  clerk  during  the  hurry  of  business  entered  it  in 
the  bank  book  ?  The  most  that  can  be  said  for  the  plaintiff  is  that 
he  and  the  bank  are  in  equal  neglect,  and  then  melior  est  con- 
ditio possidentis. 

3.  The  plaintiff  claims  through  a  forgery.  Mead  v.  Toung  {iC) 
is  decisive.  There  a  bill  was  drawn  payable  to  a  certain 
H.  Davis  or  order  and  came  by  accident  into  the  hands  of 
another  H.  Davis.  While  it  was  in  his  hands  it  was  accepted 
and  then  indorsed  by  him  to  the  plaintiff.  Three  of  the  judges 
were  clearly  of  opinion  that  he  could  not  recover  from  the  ac- 
ceptor, because  he  claimed  through  a  forgery.  The  policy  of 
the  law  compels  the  holder  of  the  l^ill  to  pursue  the  perpetrator 
of  the  crime,  who  must  be  more  within  his  reach  than  that  of 
the  acceptor. 

4.  The  conversation  of  the  plaintiff  proceeded  upon  no  mis- 
take, as  all  the  facts  were  fully  communicated  to  him;  it  was  a 
deliberate  renunciation  of  his  right  if  he  possessed  one.  It 
moreover  prevented  the  bank  from  making  any  exertion  to 
arrest  Thomas^  who  on  the  same  evening  absconded. 

In  reply  it  was  said  that  the  plaintiff  does  not  claim  through 
a  forgery,  but  through  the  entry  in  the  bank  book.  He  does  not 
make  title  through  the  hill,  but  they  attempt  to  defeat  his  title 
by  setting  up  the  bill,  Tiicre  is  no  evidence  that  the  bill  was  in 
the  plaintiff's  hands  a  day  liefore  he  j)resented  it;  the  date  is  no 
evidence  of  tlic  fact;  and  if  there  was  a  delay  it  was  for  the 
interest  of  the  bank. 

SiiiPPKN  C.  J.  delivered  the  following  charge  to  the  jury 

This  case  depends  partly  upon  law,  and  partly  upon  the  facta 

which  have  been  given  in  evidence  to  you;  upon  the  former  it 

is  incumbent  upon  us  to  give  you  our  sentiments.  Several  points 

of  (rrcat  importance  have  been  made  in  the  course  of  the  argu- 

ra)^D.  13*  E.  28. 


3t>  CASES  IN  THE  SUPREME  COURT 

1802.      nitnt,  upon  some  of  which  the  court  have  an  opinion,  and  in- 
7~~',      deed  no  great  doubts  upon  any  of  them.  They  will  communi- 
1,.         cate  enough  to  assist  you  in  forming  your  verdict,  and  if  any 
Ikink  U.  S.  dissatisfaction  is  felt  by  the  counsel,  they  can  put  tlie  matter  in 
train  for  revision.  It  is  our  opinion  that  when  the  check  was 
credited  to  the  plaintiff  as  cash,  it  was  the  same  thing  as  if  it 
had  been  paid;  it  is  for  the  interest  of  the  bank  that  it  should  be 
so  taken.   In  the  latter  case  the  bank  would  have  appeared  as 
plaintiffs;  and  every  mistake  which  could  have  been  corrected 
in  an  action  bv  them,  may  be  corrected  in  this  action,  and  none 
other.   Now  the  law  seems  to  be  well  settled  that  where  a  bill 
of  exchange  to  which  the  drawer's  name  is  forged  has  been  paid 
by  the  drawee,  it  is  too  late  for  him  to  question  the  hand  writing, 
and  the  loss  must  therefore  fall  upon  him.  The  efiect  of  an  ac- 
ceptance of  a  forged  bill  is  not  quite  so  clear.  Some  of  the 
authorities  decide  that  the  acceptor  is  bound,  because  his  accep- 
tance gives  a  credit  to  the  bill,  and  as  it  is  very  common  to 
negotiate  bills  after  acceptance,  and  indeed  to  procure  their 
acceptance  for  the  purpose  of  negotiating  them,  the  reason  of 
this  rule  may  include  the  greatest  number  of  the  cases  which 
occur.  If  the  acceptor  were  liable  for  no  other  reason,  this  point 
would  be  in  favour  of  the  defendants,  for  the  bank  did  not  give 
the  check  a  credit  with  the  plaintiff.   But  the  modern  cases  cer- 
tainly notice  another  reason  for  this  liability  which  we  think  has 
much  good  sense  in  it;  namely,  that  the  acceptor  is  presumed 
to  know  the  drawer's  hand  writing,  and  by  his  acceptance  to  take 
thu,  knoxvledge  upon  himself.  In  Price  v.  Neal  it  is  said  that 
it  is  incumbent  upon  the  acceptor  to  be  satisfied  that  the  bill  is 
the  drawer's  hand  writing,  before  he  accepts  it;  that  is,  it  is  his 
duty;  and  if  he  does  not  attend  to  it,  it  is  a  neglect  for  which  he 
shwudd  suffer,  and  not  the  holder  whose  duty  it  is  no  where 
asserted  to  be.  This  rule  would  include  the  plaintiff's  case.  But 
as  it  is  a  point  of  much  importance,  it  sliall  be  reserved  if  the 
counsel  request  it.  The  delay  of  the  plaintiff  in  presenting  the 
check,  even  if  it  were  proved,  is  of  no  importance  between  these 
parties.  'I  here  are  instances  in  which  an  indorsee  holding  a  bill 
too  long  makes  it  his  own;  but  it  is  for  a  reason  which  can  never 
avail  the  acceptor  or  drawee.  The  drawer  or  indorser  may  lose 
by  the  delay,  if  their  responsibility  is  held  to  continue;  but  it  is 
for  the  advantage  of  the  acceptor  that  the  demand  should  be 
deferred,  and  he  cannot  sustain  any  injury  by  it.  Whether  the 


OF  PENNSYLVANIA.  37 

Bank  is  entitled  to  a  certain  time  for  the  purpose  of  examlna-  1802. 
tion,  depends  upon  their  mode  of  doing  business  with  their  I  ^ 
customers,  which  is  a  matter  of  fact.  It  is  impossible  that  they  ,, 
should  be  able  to  detect  every  forgery  the  instant  it  is  present-  Bank  U.  S 
ed;  and  they  are  clearly  free  from  any  laches  in  communicat- 
ing the  detection  of  this  forgery  to  the  plaintiff.  But  it  is  said 
the  plaintiff  has  voluntarily  renounced  his  right,  by  agreeing 
that  it  was  no  deposit  if  the  check  was  a  forgery.  If  he  had  said 
this  deliberately,  knowing  his  right,  it  might  have  been  obliga- 
tory on  him;  but  it  was  the  expression  of  an  opinion  of  what  he 
should  be  obliged  to  allow,  rather  than  of  what  he  was  willing 
to  allow,  and  being  under  a  mistake  of  his  right  he  is  not  bound 
by  it.  The  case  of  Penn  and  Lord  Baltimore  is  decisive  to  this 
poiit.  I  was  present  at  the  argument  half  a  century  ago,  and 
heard  Lord  Hardxv'icke  say,  though  it  is  not  mentioned  in  the 
printed  report,  that  if  Lord  Baltimore  made  the  agreement  in 
question  under  a  mistake  of  his  right  to  another  degree  of  lati- 
tude, he  ought  to  be  relieved;  but  that  he  was  not  mistaken. 
As  some  of  the  points  however  are  of  extensive  commercial 
importance  we  will  hear  their  merits  examined  in  bimk  on  a 
motion  for  a  new  trial,  or  otherwise  if  it  is  desired.  In  the  mean 
time  you  will  find  such  a  verdict  as  the  evidence  and  the  law,  as 
thus  explained  to  you,  will  wanant. 

Verdict  for  the  Plaintiff. 

A  motion  for  a  new  trial  was  argued  at  March  term  1803,  by 
Raxvlc  and  Lewis  for  the  defendants,  and  by  Ingcrsoll  for  the 
plaintiff,  upon  the  same  points  which  were  made  at  the  trial; 
but  the  court  stopped  Jni^-crsoll  in  his  argument,  and  imme- 
diately discharged  the  rule,  without  assigning  their  reasons. 


The  CojuiiKMUvculth  ai^'ciinst  Pa  sua  Lib.  T/,uiJcLiy, 

Dcccmbei 

/^N  this  day,  which  was  the  fourth  day  of  the  term  and  of  ^  ''j.^.^gp 

^-^  the  general  jury  period,  the  attorney  general  asked  the  encc  must 

court  to  give  this  cause  a  precedence  upon  the  trial  list,  agree- J5^,.°]*,n^|j,^",' 

ably  to  rule  52.  7ih  yanuarij  1789.  But  wcultli caus- 

es upon  llie 

Per  Curiam.  A  preference  should  have  been  asked  upon  ,i',ej„^y  ° 
the  first  dav.  The  cause  must  now  take  its  chance.  P'-riod. 


38  (.ASES  IN  THE  SUPREME  COURT 

1802. 


Jones  unci  Clarkk  against  The  Insurance  Compiiny 
of  North  America. 


Monday, 

December 

27\.\\. 

A  bill  of  ex- 

the  charge       A   FTER  the  sealing  up  of  their  verdict  in  this  case  by  lYc 

inay  be  ten-  J  1.  I'urv,  but  before  the  delivery  of  it  in  court,  E.  Tils^linion 
dercd  at  uny  /.        ,       ,    ^      i  •  r 

time  before   for  the  defendants  tendered  a  bill  of  exceptions  to  the  charge  n 

,  j^^'.J"^  j^^'^the  court  delivered  by  the  chief  justice;  and  the  question  was 

their  verdict  whether  it  was  in  time. 

in  open 

court;  even 

after  they  Dallas  for  the  plaintiffs  objected  that  it  was  too  late.  The  sla- 

upon  iS"^^"*^  °^  ^^^*'*  2.  13  £^.  1.  c.  31.  which  gives  the  bill  of  Excep- 
sealcditup.  tions,  specifies  no  time;  but  it  must  be  tendered  at  the  tral. 
Bull.  N.  P.  315.;  Wright  v.  Sharj)  («);  Tidd's  Prac.  312.  314.; 
and  at  the  trial  means  before  verdict.  Exception  shall  not  be 
allowed  after  verdict,  Tidd  314. ;  and  the  uniform  practice  has 
been  to  tender  the  bill  at  the  time  the  exception  is  taken,  Jloi- 
tyn  v.  Fabrigas  (/>),  Si/mmers  v.  Peg-em  (c);  though  it  may  be 
sealed  afterwards.  JlJoneij  et  al.  v.  Leach  (d).  The  same  point 
is  expressly  ruled  in  Wright  v.  Sharps  where  Holt  C.  J.  and 
Potft'/J.say  it  must  be  prayed  and  minutes  of  it  taken  at  the  time 
of  trial,  and  the  cause  may  go  on  nevertheless ;  it  may  be  redu- 
ced to  form  afterwards.  The  judge  is  not  obliged  to  seal  it  unless 
it  is  offered  at  the  trial.  Pocklington  v.  Hatton  {e).  It  is  com- 
pared to  a  demurrer  to  evidence  and  to  a  special  verdict,  both 
of  which  must  be  minuted  at  the  time.  Gibson  v.  Hunter  {/). 
The  judges  should  set  their  seals  that  such  exceptions  were  ta- 
ken at  the  trial;  and  the  writ  to  acknowledge  the  seal  presumes 
that  at  that  time  the  exceptionable  matter  was  noticed.  Money  v. 
Leach.  The  precedents  all  justify  these  positions.  Bull.  N.  P.  319. 
Lill.  Ent.  249,  250.;  and  every  evil  which  can  arise  from  a  bill 
of  exceptions  after  a  common  verdict,  will  arise  atfter  one  oi 
this  character,  sealed  up  for  delivery. 

E.  Tilghman  stated  that  the  objection  was  taken  as  soon  as  the 
court  opened,  and  before  the  jury  appeared  at  the  bar.  A  ver- 
dict had  indeed  been  agreed  upon,  and  sealed  up  for  the  con- 

Ca)  11  Mod.  175.  1  Sa!k.  38S.  S.  C.     {d)  I  W.  Bl.  556.  3  Bun.  1692.  5.  C 
lb)  2  W.  Bl.  929.  (e)  8  Mod.  220. 

(c)  C(fxp.  494.  (/)  2  H.  Bl.  200 


lb 

38 

8s 

t217 

3 

48 

13 

387 

53 

1^7 

OF  PEN NS Y L V ANI A .  3 9 

venience  of  the  jun^;  but  such  a  verdict  is  not  given  until  the      1802. 
jurors  have  parted  with  it,  and  it  is  read  and  affirmed  in  open  y~         ,' 
court.   3  Bl.  Com.  Z77.  Until  this  last  step  the  trial  continues;    Clarke 
the  trial  is  over  when  this  last  step  is  taken.  By  this  undeniable         ^. 
position  all  Mr.  Dallas^s  cases  are  done  away;  all  of  them  ad-  If^surance 
mit  that  the  exception  will  answer  if  taken  at  any  time  before      xt  \ 
verdict. 

But  there  is  also  an  important  difference  between  an  excep- 
tion to  evidence^  and  an  exception  to  the  charge.  In  the  first  case 
if  it  be  not  made  when  the  evidence  is  offered,  a  reliance  is 
placed  on  the  sufficiency  of  the  evidence,  and  better  or  additional 
evidence  is  not  sought;  the  exception  taken  at  a  late  period 
would  therefore  if  valid  strip  the  party  of  his  support  when  he 
no  longer  had  the  opportunity  to  procure  more.  But  before  the 
charge  each  party  is  presumed  to  have  exhausted  his  evidence, 
at  least  so  far  as  is  material;  and  no  injury  can  accrue  to  either 
party  by  a  subsequent  exception,  if  it  be  made  before  verdict. 
By  this  distinction  too  the  cases  read  are  explained  away.  Tidd 
314.  is  of  an  exception  to  evidence;  so  Bull.  jV.  P.  315.  Wright 
V.  Sharpy  and  Symmers  v.  Rcgcm.  Mostyn  v.  Fabrigas  is  not 
to  this  point  either  way;  nor  is  Money  v.  Leach;  and  the  prece- 
dents cited  shew  the  exception  to  have  been  taken  even  subse- 
quent to  the  verdict.  Bnll.  A'.  P.  319.  Lill.  EnU  250. 

Dallas  in  reply  observed  that  there  was  no  distinction  in  the 
books  between  charg<  and  evidence;  and  that  the  cases  of  Por^- 
lington  V.  Hattony  and  JVright  v.  Sharp  related  to  the  charge. 

Per  Curiam.  A  jury  may  depart  from  a  privv  verdict.  Un- 
til it  has  been  opened  and  confirmed  in  court,  it  is  in  fact  no 
verdict;  and  the  authorities  and  precedents  which  have  been 
read  shew  undeniably  that  if  the  exception  to  the  charge  is 
taken  at  any  time  before  verdict  it  is  in  season.  We  cannot  re- 
fuse to  allow  the  bill  in  this  case;  and  wc  arc  hnjipy  to  do  it  as  it 
will  bring  the  principal  question  before  ;i  higher  irilnmal. 


4U 


CASES  IN  THE  SUPREiME  COURT 


180: 


.^Icnday, 
Januarys  1st. 

A  protest 
jnade  by  the 
captain  of"  a 
vessel  within 
twenty-four 
hours  after 
his  arrival  at 
his  first  port 
where  both 
the  owner 
and  insurer 
resided,  and 
without  no- 
tice to  the 
insurer,  is 
evidence  in 
an  action  be- 
tween those 
parties  to 
shew  that  an 
occurrence 
at  sea  had 
made  a  de- 
viation ne- 
cessary. 


Brown  against  G  i  ii  a  r  d  . 


lb    4(1 
ab  258 


''r^HE  defendant  underwrote  a  policy  of  insurance  on  the 
■*-  schooner  Eagle^  upon  a  voyage  at  and  from  Edenton^ 
North  Corolino,  to  Cape  Nicola  Mole.  The  vessel  was  captured 
as  she  was  sailing  fronl  Pliilacklphia  to  Cape  Nicola  Mole^  car- 
ried into  Port  de  Paix  and  condemned.  At  the  trial  of  the 
cause  before  Judges  Smith  and  Brackenridge  at  Nisi  Prius  in 
June  1802,  the  plaintiff's  counsel,  to  excuse  the  deviation, 
offered  in  evidence  the  protest  of  the  captain  made  within 
twenty-four  hours  after  his  arrival  in  Philadelphia^  where  both 
the  plaintiff  and  defendant  resided^  but  without  notice  to  the 
defendant,  to  prove  that  the  vessel  upon  her  voyage  from  Eden- 
ton  to  Cape  Nicola  Mole  struck  on  Ocracoke  Bar^  by  which  she 
spnmg  a  leak,  and  that  in  consequence  of  stormy  weather  Phi- 
ladelphia was  the  first  port  she  could  make.  This  evidence  was 
objected  to  by  the  defendant's  counsel,  and  refused  by  the 
court,  reserving  the  question,  and  giving  the  plaintiff  leave,  in 
case  he  should  be  nonsuited  on  this  ground,  to  move  to  take 
off  the  nonsuit.  The  plaintiff  being  unable  to  supply  the  proof 
suffered  a  nonsuit,  and  accordingly  now  moved  to  take  it  off. 

Condi)  for  the  plaintiff  contended  that  the  protest  of  the  cap- 
tain had  been  invariably  admitted  in  Pennsijlvania^  as  evidence 
in  cases  between  insurer  and  insured  to  prove  capture,  to  ex- 
cuse deviation,  and  in  general  to  establish  transactions  at  sea. 
Nixon  v.  Long  (a).  Story  v.  Slrettell  (A),  Richette  v.  Stewart  (c). 
That  there  was  nothing  in  these  cases,  and  nothing  in  the  reason 
of  the  rule  to  confine  it  \.o  foreign  protests;  that  they  had  been 
admitted  here  on  much  the  same  ground,  upon  which  a  trader 
is  allowed  to  prove  his  book  of  original  entries,  the  necessity 
of  the  case,  which  justifies  the  admission  of  a  protest  made  at 
home  as  well  as  any  other.  Notice  to  the  insurers  was  unneces- 
sar)-.  A  cross  examination  would  not  have  given  the  document 
any  additional  effect  in  court.  It  is  ind;;ed  presumed  to  be  im- 
practicable as  the  protest  must  be  extended  within  twenty-four 
hours  after  arrival,  and  the  insurers  are  not  known  to  the  cap- 
tain. A  protest  has  no  resemblance  to  the  ordinary  deposition  of 
a  witness.  It  is  made  before  a  dispute  occurs,  before  any  action 


(a)  1  Dall.  6. 


(i)  1  Ball.  10. 


(01i)fl//.3ir. 


IN  PENNSYLVANIA.  41 

can  be  brought,  and  by  a  peison  wlio  is  in  some  measure  the      iqc 
agent  of  both  parties.   A  protest  made  here  was  admitted  in 
the  Common  Pleas  in  Gilchrist  v.  Ward,  before  Judge  Biddh. 


Brown 


Raxole  and  Ingersoll  answered  that  the  admission  of  a  cap- 
tain's protest  in  any  case  is  a  dangerous  exception  to  the  salu- 
tary rules  of  evidence.  It  is  ahva_vs  rejected  in  England^  even 
under  the  most  favourable  circumstances,  Senat  v.  Porter  (ci); 
and  generally  through  the  United  States.  It  is  an  ex  parte 
affidavit  by  a  pt-rson  under  strong  temptations  to  colour  or 
conceal  facts  for  the  purpose  of  justifying  himself.  Where 
however  it  is  made  abroad  under  certain  regulations,  it  must 
now  be  received  in  Pennsylvania^  for  so  are  the  cases  cited;  it 
has  been  thought  admissible  from  the  necessity  of  the  case. 
But  where  is  the  necessity  that  when  owner  and  underwriter 
reside  in  the  very  port  of  arrival,  the  captain  without  notice  of 
any  kind  should  proceed  to  make  his  deposition  in  a  corner.  If 
a  cross-examination  would  not  give  to  the  instrument  the  cha- 
racter of  Icgid  evidence,  it  would  get  at  the  truth.  The  cases 
have  never  gone  the  length  of  admitting  a  protest  made  at 
home.  In  Gilchrist  v.  IVard^  a  bill  of  exceptions  was  tendered 
to  the  court's  opinion,  but  was  never  prosecuted,  because  the 
Verdict  was  for  the  excepting  party. 

Shippen  C.  J.  delivered  the  opinion  of  the  court. 

The  question  is  whether  the  captain's  protest  made  in  the 
port  ol  Philadelphia^  (where  both  insurer  and  insured  resided) 
on  a  vo}age  from  Edcnton  to  the  West  Indies^  can  be  given  in 
evidence  r  The  protest  of  the  master  of  a  vessel  was  ftrst  ruled 
to  be  evidence  in  the  case  o{  Nixon  iif  Harper  v.  Long-^  in  1762. 
On  eveiy  occasion  since,  both  before  and  since  the  revolution, 
as  between  insurer  and  insured  suth  protests  have  been  adiiiit- 
ted  in  evidence.  But  it  is  objected  that  the  protest  was  not 
made  in  jiforeign  port,  but  in  a  port  where  tlie  parties  resided. 
I  take  it  that  the  reason  of  ever  admitting  it  arose  partly  from 
its  being  an  instrument  which  the  insurance  offices  always  ex- 
pect to  be  produced  to  them,  ;is  a  document  to  prove  the  loss, 
and  partly  from  the  necessity  of  the  case  as  a  commercial  trans- 
action. What  is  the  nature  of  this  necessity?  I  take  it  that  the 
■Mss  or  damage  arises  on  the  occan^  and  that  the  master  is  the 

(fl)  7  D.ist  E.  158. 
Vol.  I.  F 


V. 

GiRARD. 


4 


o 


CASES  IN  THE  SUPREME  COURT 


1803.      only  person  arquaintcd  with  all  the  facts;  and  he  immediately 
"TT  on  coming  to  shore  making  a  protest,  it  is  admitted  to  be  read 

■,..  in  evidence  in  a  commercial  case,  contrary  to  the  general  rules 
GiRARD.  of  law  in  other  cases.  Whether  the  parties  reside  here  or  else- 
where, this  necessity  is  the  same,  as  the  damage  was  at  sea^  and 
the  master  is  the  best  able  to  give  an  account  of  it.  The  calling 
the  insurers  before  the  notary  when  the  protest  is  made,  to  give 
them  an  opportunity  of  cross-examination,  would  be  a  novel 
proceeding,  and  if  done,  would  not  by  the  rules  of  law  make  it 
better  evidence,  as  no  action  then  depended.  Therefore  let  the 
nonsuit  be  set  aside. 

Nonsuit  set  aside. 


RusTON  against  The  Administrators  of  Dun  woody. 

ON  behalf  of  the  plaintiff  a  motion  was  made  by  Rawle  to 
strike  off  the  rule  of  reference,  which  had  been  made  in 


March   14tli. 

The  court 
will  not  per- 
mit a  rule  ot  ^^^^  cause,upon  the  ground  that  the  original  defendant  was  dead. 


lias  been  a 
mefitincjof 
the  referees 
and  the  par- 
ties have 
proceeded 
before  them 


reference  to 

be  struck  off"  that  the  rule  had  been  assented  to  by  the  plaintiff  with  the  ex- 
atter  tiiere  pej-^^^jon  j^at  from  a  personal  understandmg  with  the  defend- 
ant he  would  derive  certain  accommodations,  which  his  admi- 
nistrators who  were  now  parties  to  the  action  could  not  give, 
and  that  the  rule  being  entered  into  between  the  plaintiff  and 
Dumvoodij^  it  could  not  operate  as  a  rule  between  the  plaintiff' 
in  the  con-  and  the  administrators  oi  Dunwoody.  He  cited  3  St,  Laws  94. y 
not\vitlf-'  ^^^  argued  that  from  the  spirit  of  the  privileges  there  allow- 
standing  ed  to  administrators,  the  court  would  be  authorized  to  rescind 
meetinff  one  t^^^  rule  upon  an  application  by  them,  and  of  course,  to  make 

of  tlie  origi-  gn  equitable  reciprocity  of  advantage,  they  should  do  it  for  the 

nal  parties  is  .    . 

dead,  and  his  survivmg  party. 

representa- 

T.  Ross  for  the  defendants  answered  that  there  had  been  seve- 
ral meetings  during  the  life  time  of  Diinzuoody^  and  therefore 
the  plaintiff  had  already  derived  the  advantages  which  he  con- 
templat-'d  in  agreeing  to  the  rule:  that  it  was  a  general  practice 
of  this  court  to  refuse  to  rescind  a  rule  of  reference  after  there 
had  been  a  meeting  of  the  parties;  and  that  as  the  administra- 
tors had  come  in  voluntarily  without  asking  any  favour,  there 
was  no  equity  in  granting  one  to  the  plaintiff;  though  the  act 


tives  have 
been  sub- 
?!lituted. 


OF  PENNSYLVANIA.  43 

uited  appeared  to  regard  no  other  privilege  to  the  defendants      1803. 
than  that  of  a  continuance.  Ruston 

V. 

Per  Curiam.  Rules  of  reference  should  not  lightly  be  struck      Dun- 
ofF,  after  a  party  has  felt  the  pulse  of  the  referees  at  a  meeting, 
and  concessions  have  been  made  which  cannot  be  afterwards 
used.  Upon  the  circumstances  of  this  case  we  must  continue 
♦4ie  rule  of  reference,  (a) 

(fl)  Vid.  Turner  v.  Ccnvper,  Barnes  210. 


WOODV. 


Snyder's  Lessee  as^ainst  Hoffman.  iVedr.esda^ 

EJECTMENT  for  a  house  and  lot  in  the  district  of  South-  A  rci^on  of 
xvark.  John  Snyder  the  lessor  of  the  plaintiff  obtained  auiihoutcon'- 
judgment  against  Peter  Hoffman  in  this  court  at  September  term  se"t  of  par- 
1798  for  305  dolls,  and  58  cts.  and  costs;  and  by  a  ft.  fa.  he  back  to  the 

took  in  execution  the  premises  in  question.   The  inquest  found  ^"'^"^'^  '"'.'■  , 

,  icrccs  iortiic 

that  the  rents  and  profits  would  pay  in  seven  years;  and  a  /^/ic- purpose  of 

rar'i  facias  was  then  issued,  and  a  return  made  that  the  house  P,!^'"'^^''"^ 
,   ,.  ,  ...  or*  iniorinalily. 

and  lot  were  delivered  at  a  certam  valuation  to  ctnyder.   At  the 

time  of  this  execution  Eleanor  Hoffman  the  defendant,  who  was 

the  wife  of  Peter  but  had  separated  from  him,  claimed  and  was 

possessed  of  the  property  under  a  conveyance  from  Peter  to  one 

Hannah  Toy;  but  this  conveyance  was  alleged  to  have  been 

without  consideration  and  with  intent  to  defraud  Snyder;  and 

he  therefore  brought  the  present  ejectment. 

The  matters  in  variance  in  this  cause  were  referred  under  a 

rule  of  court;  and  the  referees  made  the  following  report:  "  Wc 

••'  the  referees  &c.  do  award  a  balance  of  364-  dolls,  and  37  cts. 

"  due  from  Peter  Hoffman  the  defendant  to  John  Snyder  plain- 

"  tiff,  with  costs  of  suit.   It  is  in  full  proof  before  the  referees 

"  that  the  said  Peter  Hoffman  and  Eh'anor  his  wife  conveved 

"  a  certain  house  and  lot  in  the  district  of  Soutliivark  unto  Han- 

"  nah  Toy  in  fee,  without  any  valual)le  consideration;  which 

"  said  house  and  lot  were  reconveyed  by  the  said  Hannah  Toy 

*'  to  Eleanor  wife  of  the  said  Peter  Hoffman  without  any  con- 

''  sideration  as  appears  to  us,  thereby  intending  to  prevent  the 

'  said  house  and  lot  being  levied  on  for  the  payn»cnt  of  the  just 


44  CASES  IN  THE  SUPREME  COURT 

1803.      *'  debts  of  the  said  Feti'r  Hoffmun^  which  in  equity  roc  beluvt: 
S  •  •   kr's    '  ^^^^^^^  ^^  made  liable  to  the  jiidgmcnt  that  viaij  Ae  obtained  by 
Lessee     "  the  said  JqIiti  Snyder  on  this  award^'' 

^'-  To  this  report  several  exceptions  were  filed.   1.  That  the 

"°^^^^''' referees  had  decided  on  a  matter  not  submitted  to  them;  viz. 
tlie  sum  due  from  Peter  Hodman  to  Snijder.  2.  That  the  award 
was  not  positive,  as  the  referees  merely  say  they  believe  that 
the  premises  should  in  equity  be  made  liable  to  the  judgment  that 
w«//  be  obtained,  o.  That  the  referees  report  that  the  premises 
should  be  liable  to  the  judgment  obtained  on  this  axvard;  whereas 
the  question  was  whether  they  were  liable  to  a  judgment  ob- 
tained in  another  suit.  4.  That  the  sum  awarded  to  be  due  was 
not  the  same  that  was  recovered  in  the  suit  between  Snyder 
and  Peter  Hoffman. 

Hopkinson  in  support  of  the  exceptions,  after  opening  the 
case,  was  stopped  by  the  court,  who  desired  to  hear  the  opposite 
counsel. 

Rawle  in  support  of  the  award.  All  the  exceptions,  but  thai 
Avhich  relates  to  the  sum  awarded,  turn  upon  informality;  and 
as  to  that  exception,  the  referees  have  merely  added  interest 
to  the  original  judgment;  at  all  events  there  ^s  no  doubt  an 
award  may  be  good  in  part  and  bad  as  to  the  rest.  This  court 
has  been  astute  to  support  awards  where  justice  has  been  done, 
and  the  real  question  between  the  parties  decided.  They  have 
gone  even  in  the  case  of  verdicts  as  far  as  is  necessary  here,  by 
moulding  an  informal  verdict  so  as  to  produce  consistency  on 
the  record.  Walker  v.  Gibbs^  (a)  Thompson  v.  Musser  {b).  The 
report  is  in  effect  a  general  finding  for  the  plaintiff.  For  the 
only  question  between  the  parties  was  whether  the  premises  in 
controversv  were  liable  in  equity  to  Snyder'' s  '^xxd^vnent  against 
Hoffman^  and  this  the  referees  have  substantially  said,  although 
they  may  have  added  immaterial  matter. 

Condy  in  reply.  There  is  evidently  something  more  than  in- 
formality upon  the  very  face  of  the  award.  The  referees  do  not 
find  the  house  and  lot  of  which  they  speak,  to  be  the  same  for 
which  the  ejectment  is  brought;  they  award  that  the  deed  by 

(a)  2  DalL  21)  {b)  i  Dal  I.  458- 


OF  PENNSYLVANIA,  45 

Hannah  Toy  was  intended  to  defraud,  and  not  that  to  her;  they      1803. 
report  their  beluf^  instead  of  saying  that  the  fact  is  or  is  not  so;  Snyder's 
and  instead  of  awarding-  that  the  premises  are  liable,  which  is      Lessee 
the  ver>'  question  in  dispute,  they  express  an  opinion  that  in         '"• 
equity  they  ought  to  be  so.  Further,  it  surely  is  no  informality  "°^^^'*^^'' 
to  award  a  sum  to  be  due  by  Peter  Hoffman  the  defendant^ 
when  he  is  no  party  to  the  suit,  when  that  question  was  never 
submitted  to  the  referees,  and  when  it  is  confessed  to  be  a  diffe- 
rent sum  from  that  which  Snyder  actually  recovered  from  Hoff- 
man  in  a  suit  at  law.  This  part  of  the  report  exposes  the  premi- 
ses to  two  debts,  or  certainly  to  a  larger  one  than  was  due. 

Th^  Court,  after  the  argument,  being  of  opinion  that  the  report 
was  merely  informal,  recommitted  it  to  the  same  referees  to 
correct  the  informality;  who  on  the  next  day  reported  gene- 
rally that  they  found  for  the  plaintiff  with  six  pence  damages. 

Condif  and  Hopk'inson  now  objected  to  filing  the  second  report, 
as  the  court  had  no  authority  to  recommit  without  consent  of 
parties.  But, 

Per  Curiam.  In  the  case  of  Eckarfs  administrators  v.  The 
executors  of  Vandcren  there  was  a  recommitment  without  con- 
sent after  argument;  and  for  these  thirty  years  such  recommit- 
ments have  been  frequent,  when  the  report  has  been  informal. 

Judgment  for  the  Plaintiff 
on  the  second  Yc\iOYX. 


T u  R  N  B  u  I.  L  against  The  Commonwealth .  Monday, 

SejUember 
5tli. 
TNGERSOLL  for  the  plaintiff,  asked  the  court  to  give  this  The  court 

1  ^u^'ii'^  11^  1^  will  not  Ki-ant 

cause  a  precedence  upon  the  trial  list  agreeably  to  rule  52,  pj-i-cedcnce 

7th  Januanj  1789,  and  rule  5!i,  8th  April  1789,  the  common-'"  ^  "'"^^^ '" 

wealth  being  a  part}-  and  interested  in  the  event  of  the  suit.        coinmon- 

weullli  is  in- 

31.  Levy  who  was  concerned  in  other  causes,  objected  to  the  less  itis'ask- 
prcfercncc,  inasmuch  as  the  rules  embraced  the  case  of  common- '^^'  '*>  ^''^ 
wealth  plaintiff,  and  not  defendant.  The  preference  he  said  was  \vcaltb. 


/ 

46  CASES  IN  Tin:  SUPREME  COURT 

1803.      ^^^  odious  one;  it  had  arisen  iVoni  that  very  unjust  })arliahty 
TvHNUuLL^^'^'^  in  England  is  shewn  to  the  business  and  rights  of  the 
V.         crown,  to  the  vast  injury  of  the  subject;  and  therefore  should 
1  he  Com-  never  be  extended  by  a  free  construction. 


monwcalth. 


M^Keati  (attorney  general)  said  he  had  never  asked  a  pre- 
ference in  such  a  case;  nor  did  he  now;  but  he  did  not  object 
to  it. 

Dallas'  for  the  plaintiff  replied  that  the  ground  of  the  rule 
had  been  misconceived  by  Levy;  it  was  founded,  he  said,  in  this 
simple  and  equitable  principle,  that  the  business  of  the  commu- 
nity, in  which  all  are  concerned,  should  be  transacted  in  prefer- 
ence to  that  of  an  individual  which  concerns  but  one ;  it  was 
therefore  as  just  a  provision  in  a  case  like  this,  as  in  the  case  of 
commonwealth  plaintiff. 

The  Court  held  the  matter  under  consideration  until  the 
next  morning,  when  they  said  that  as  the  attorney  general  did 
not  ask  the  preference  they  would  not  grant  it. 


September  DeBeNNEVILLE  f/^rt-/;;^^  De  BeN  NE  VIL  LE. 

lOlh. 

Witnesses  T^  ^^^^  cause,  which  was  an  action  of  trespass  for  mesne  pro- 
subi  ocnaed    A  fj^g^  ^  verdict  was  found  for  the  plaintiff  for  200  dolls,  and  the 

th(nii,'h  not  r      •  i    n         t^ 

examined,     prothonotary  taxed  the  costs  ot  witnesses  at  162  dolls,    rrom 

ai.d  examin-  this  bill  the  defendant  appealed. 

ed  tlioiifcli  '  ' 

not  Kubpcc- 

riacd.areen.     Raxvle  for  the  defendant  allecred  that  eight  of  the  witnesses 

titled  to  pay-  °  ° 

ment.  A  par-  suhpcenaed  by  the  plaintiff  had  been  neither  examined  nor  called 

ty  may  call  ^  j^jj^  ^^^  ^^^  ^^  others  were  called  and  examined  solely 
as  many  %vit-    -^  '  •' 

nesscs  as  lie  by  the  defendant;  and  he  prayed  the  opinion  of  the  court  whe- 

thinksneces- .1        •  •         i  •    i  i    •'.•m  i.  ^  „ 

sarv  to  make  *  ^'^  '"  ^  cause  m  which  a  plaintiff  knows  he  must  recover  some- 
out  his  case; thing,  and  defendant  has  nothing  to  oppose  to  his  demand,  he 
the  court  will      „  ,  .  .      ,  .  i     i         •        ^i. 

notinterteie       ^  oppress  his  antagonist  by  summoning  and  charging  the  ex- 

uiilr-ss  he  is  pense  of  witnesses  whom  he  never  calls  to  the  book. 

giiilty  of 
oppression. 

Dickerson  for  the  plaintiffstated  that  several  of  the  witnesses 

were  brought  to  prove  the  annual  value  of  the  estate  and  some 


OF  PENNSYLVANIA.  47 

other  points  which  were  unexpectedly  conceded  at  the  trial  j  but      j  gOo. 
that  there  was  no  wilful  oppression.  ^^  Ben- 

.         ,      ,  .  •  ...  J      NEVILLE 

Smith  J.  I  examuied  this  question  a  long  time  since,  and         ^^ 
this  was  the  result;  a  witness  subpoenaed  though  not  examined   De  Ben- 
has  a  right  to  payment;  so  if  examined  though  not  subpoenaed,  neville. 
A  party  has  a  right  to  call  as  many  witnesses  as  he  thinks  are 
necessary  to  make  out  his  case.  Where  there  is  oppression  it 
must  be  proved,  and  the  court  will  lay  their  hands  upon  it;  but  it 
is  not  to  be  presumed. 

Shippen  C.  J.  There  must  be  proof  of  oppression,  which 
does  not  seem  to  be  the  case  here. 

Per  Curiam.  The  bill  of  costs,  as  it  has  been  taxed  by  the 
prothonotary,  is  confirmed. 


Watson  and  Paul  against  Ihe  Insurance  Compan}' ^"e^^^^v. 

o  -VT        1      A  •  Sept.  13tU. 

of  North  America. 


T 


HIS  was  an  action  of  covenant  upon  a  policy  of  insurance  In  an  action, 
by  the  defendants  for  1000  dollars,  on  Goods  by  the  sloop  "i^j,^,,!"!^^^'^  " 
Rebecca^  at  and  from  her  last  port  in  Jamaica  to  Philadcljjhia, ''^■\^crc\nthQ 
with  liberty  to  touch  at  the  Mole.   The  plaintiffs  declared  for  a  |.'|;||."^' ^-^3^.^^^' 
total  loss  by  capture;  and  at  the  trial  before  Shippen  C.  J.  and  total  loss, 
'Smith  J.  at  Nisi  Prius  in  March  1802,  the  following  facts  were 'p^"|,J".°^^'q^ 
in  evidence.    The  sloop,  with  her  complete  return  cargo  oncundcmna- 
board,  sailed  from  Green  Island  in  Jamaica  on  the  28th  May  p,.op",.tv  in- 
1797,  bound  for  Montcgo  Baif^  not  with  a  view  to  take  any  ad-sn'*il  which 

....  ,  '  ,  ...  ,      "  lie  lias  iievt-r 

ditional  cargo,  but  to  get  the  requisite  clearance  and  papers  .^bamloiu'd 
from  the  custom  house  at  that  place,  there  being  none  at  6Vtr/ztotlic  iin<lei- 
Islancl.  On  the  29th  Maij^  on  her  way  to  Mo7ifeifO  Baij^  .she  was  j,„.j,  ,„,',^. 
captured  bv  a  French  privateer,  carried  into  Cape  Francois.  and'-'^t''"atc'  ihc 
together  with  her  cargo,  condemned.   Un  llie  ^(XAui^Ufit  1/9/,,^,.^.  rcaipet- 
the  protest  of  the  captain  setting  forth  the  captuie  and  con-f"«{'.  deduct 
demnation  was  exhibited  at  the  office  of  the  defendants,  when^^jinie  mum 
a  demand  was  made  for  a  total  loss,  which  the  defendants  re-  ""siTcd,  "ni'l 
tused  to  pay;  whereupon  tins  action  was  instituted.    1  he  plain- ni.air.dcr  as  a 
iffs'  interest  was  proved.  prntinl  losf. 

The  cause  wa-;  argued  to  the  rouit  and  jury  upon  thrcr  obje^- 


Ins.  Co 

N.A. 


48  CASES  IX  THE  SUPREME  COURT 

1803.      ^'oii**  to  the  claim.  First,  That  Green  Is/atid  was  not  the  sloop's 

■— ;      last  port  in  7<^'"f^'C«  •within  the  meaning  of  the  policy:  for  as 

and        ^'^^  policy  was  to  attach  only  when  she  finished  her  coasting, 

Pai'  I.  anti  she  had  sailed  to  3Iontcgo  Baij  for  her  papers,  it  was  evident 
"v-  that  Montego  Bay  was  contemplated  to  be  her  last  port.  Second^ 
That  it  was  against  usage  for  vessels  loading  at  Green  Island  to 
go  to  Montego  Bay  for  a  clearance,  but  that  Lvcea  was  the  port 
from  which  it  should  have  been  obtained  over  land;  and  that 
sailing  to  Montego  Bay  was  therefore  a  deviation.  Third,  That 
there  had  been  no  abandonment,  without  which  the  plaintiffs 
could  not  recover  a  total  loss,  and  no  partial  loss  being  proved, 
they  could  not  recover  any  thing. 

The  first  and  second  objection  the  chief  justice  in  his  charge 
left  very  much  to  the  jury;  and  they  were  not  noticed  in  any 
subsequent  stage  of  this  cause.  The  third  was  reserved  for  con- 
sideration in  bank.  The  jury,  without  following  any  rule  that 
was  suggested,  but,  as  was  understood  at  the  time,  by  compro- 
mise with  each  other,  found  for  the  plaintiffs  740  dolls.  10  cents; 
and  it  was  then  agreed  that  the  propriety  of  a  verdict  for  this  sum 
under  the  circumstances  of  the  case  should  also  be  reserved  as 
a  point  to  be  argued  with  the  other  upon  a  motion  for  a  new  trial 
by  the  defendants.  The  points  were  reserved  in  the  following 
terms:  1.  Whether  an  abandonment  is  sufficiently  proved  or 
waived  by  evidence  of  a  demand  as  for  a  total  loss  and  refusal 
to  pay.  2.  Whether  where  the  demand  is  for  a  total  loss,  and 
there  is  proof  of  a  total  loss,  the  jury  can  find  a  partial  loss  or 
a  less  sum  than  is  underwritten. 

They  were  now  argued  by  31.  Levy  and  Letvis  for  the  plain- 
tiffs, and  by  Moykm,  E.  Tilghman,  and  Ingersoll,  for  the  de- 
fendants. 

On  xhtjirst  point  Levy  argued  that  no  specific  words  are 
necessary  to  form  an  offer  of  abandonment.  Any  words  will 
answer  if  they  indicate  a  willingness  in  the  assured  to  cede  the 
property  damaged  or  jeopardized,  as  soon  as  the  loss  shall  be 
paid.  All  that  is  necessary  is  to  do  some  act  signifying  an  inten- 
tion to  abandon,  Mitchell  v.  Edie  (a);  and  a  demand  for  a  total 
loss  is  the  fullest  evidence  of  this  intention.  Upon  the  payment 
of  the  loss  by  the  defendants  the  property  would  have  v»ested  in 

(a)  1  2J.  £5*  ^.  616  * 


OF  PENNSYLVANIA.  49 

them  without  further  act  by  the  plaintiffs,  which  shews  the  reason      ■«  gQo 

of  the  principle.   As  in  trover  and  trespass,  after  judgment  and  ~Tr; 

satisfaction  for  the  conversion  or  taking  of  goods,  the  property  is        ^^^ 
in  the  defendant.  Brorvn  v.  Wotton^  (ci)  Lacon  v.  Barnard^  (J))      Paul 
Glib.  Ev.  265.  The  object  of  an  offer  to  abandon  is  to  inform         ^'- 
the  insurer  of  the  party's  election,  that  he  may  pursue  the      -^^  . '^' 
remnant  of  the  property,  and  make  it  of  as  much  value  as 
possible,  AllwQod  v.  Henklc.  (c)    Any  act  which  communicates 
this  information  must  be  equal  to  a  formal  offer,  and  a  demand 
as  for  a  total  loss  is  as  explicit  to  this  effect  as  any  act  can  be. 
It  was  evidently  so  considered  in  the  case  of  Havtlotk  v.  Rock- 
rvciod^  {d^  where  the  assured  without  abandoning  or  offering  to 
abandon  in  terms,  merely  demanded  as  in  this  case  payment  as 
for  a  total  loss.   He  was  indeed  prevented  from  enjoying  the 
benefit  of  it,  because  upon  a  demand  by  the  insurers  that  he 
should  actually  assign  his  interest,  he  refused;  which  negatived 
the  willingness  to  abandon  implied  by  the  demand  of  payment; 
of  course,  but  for  this  refusal,  he  might  have  recovered  upon 
his  demand  alone.  This  was  a  case  of  capture  like  the  present, 
and  is  in  point. 

But  the  refusal  to  pay,  williout  mentioning  the  want  of  an 
offer  to  abandon,  was  at  all  events  a  waiver;  as  in  the  case  of  a 
tender  of  bank  bills,  where  no  objection  is  made  particularly 
to  bills. 

On  the  second  point  Lewis  argued  that  it  was  clear  the  find- 
ing of  the  jury  would  stand  well  with  the  declaration  for  a  total 
loss,  that  point  being  at  rest  bv  the  case  of  Gardiner  v.  Croas- 
dfdc.  (e)  The  proof  of  total  loss  referred  to  in  the  point  re- 
served is  such  as  the  circumstances  of  this  case  set  forth,  a  loss 
which  would  have  been  total  upon  abandonment,  but  which  is 
so  incomplete  as  to  leave  a  spes  reciipcrandi.  'J'here  has  not 
been  a  total  destruction,  the  property  remains  in  specie,  and  the 
question  is  whether  the  jury  can  make  a  deduction  for  the 
chance  oT  recovery'.  The  assured  is  not  in  any  case  bound  to 
abandon;  but  the  onlv  consequence  of  not  abandoning  is  that  he 
must  be  satisfied  with  an  average  loss;  Goss  v.  Withers;  (y) 
Mitchell  V.  Edie;  and  as  an  average  loss  he  may  recover  any 
thing  even  a  cent  short  of  the  sum  insured.  Park  103.  144. 199- 

{a)  Co.  Jiic.  73.  {(i)  Atchcwn  \.b  D.IJ  E.  274. 

(b)  Cro.Car.  36.  (r)  2  Burr.  906. 

f()  Park  172.  (/)  2  Burr.  679. 

Vol.  I.  G 


N.  A. 


5Q  CASLS  IN  THE  SUPREME  COUR'l 

1803.      The  pltilntlfts  have  chosen  to  reserve  the  spes  recuperandi  to 

TT thcinsilves,  which  they  had  a  right  to  do,  and  which  it  is  to  be 

and        presumed  the  jury  have  valued.  It  the  loss  is  so  complete  that 

Paul      there  is  nothing  left,  no  abandonment  is  necessary  according  to 

''•         Camber Ijn 9- X.  M'-Call;  (a)  if  on  the  other  hand  an  abandonment 

T^'  4°'    is  necessary  to  make  it  a  total  loss  there  being  something  to  cede, 

that  something  is  a  deduction  from  a  total  loss  which  leaves  an 

average.  Havclock  v.  RockwoodwAs,  the  case  of  a  declaration  for 

a  total  loss,  a  total  loss  like  the  present  proved,  and  a  recovery 

for  a  partial  loss. 

For  the  defendants  it  was  contended  that  an  explicit  offer  to 
abandon  was  necessary,  because  notwithstanding  the  demand 
as  for  a  total  loss,  the  plaintiffs  might  still  upon  a  change  of  pros- 
pects have  recurred  to  the  captors;  by  this  means  the  insurers 
would  have  been  kept  inactive  by  their  uncertainty,  and  the 
assured  would  have  plajed  fast  or  loose  according  to  the  colour 
of  events.  All  the  cases  require  an  offer  to  abandon,  and  they 
speak  of  it  in  connexion  with  and  subsequent  to  the  demand  as 
for  a  totalloss, proving  thereby  their  distinct  character.  2  Mar^li, 
479.481.483.  485.488.  494.  517,  518.  P«r/^  82.  143,  144.  172. 
Havelock  v.  Rockxvood  by  no  means  decides  that  a  demand  for 
a  total  loss  is  equivalent  to  an  offer  of  abandonment.  On  the 
contrary  the  underwriters  in  that  case  demanded  an  assignment 
of  more  than  they  were  entitled  to,  which  the  assured  very  pro- 
perly refused,  and  then  the  case  stood  upon  the  original  ground, 
a  simple  demand  of  pa}-ment,  which  was  held  to  be  insufficient. 

There  is  no  pretence  for  presuming  a  waiver.  If  an  offer  to 
abandon  was  necessary,  the  insurers  had  a  right  to  refuse;  the 
title  of  the  assured  to  payment  as  for  a  total  loss  was  incom- 
plete, and  the  demand  unfounded.  It  never  was  heard  that  a 
party  bound  to  a  certain  duty  after  the  performance  of  a  condi- 
tion by  another,  is  likewise  bound  to  tell  the  other  party  that  he 
must  perform  his  condition  under  the  penalty  of  being  presu- 
med to  waive  it. 

The  second  point  involves  the  existence  of  abandonment;  for 
if  upon  a  declaration  for  a  total  loss,  and  proof  of  a  capture  and 
condemnation  of  the  property,  the  jury  may  value  the  fipes  recu- 
perandi^ and  their  finding  is  protected  as  a  partial  loss,  it  will 

(a)  2  Dall.  280. 


OF  PENNSYLVANIA.  51 

supersede  abandonment  in  every  case.  The  oljjections  to  it  are  1803. 

insurmountable.  The  jury  must  find  according  to  their  proof.  Ay  TygQ^ 

Now  what  has  been  proved  here  ?   Capture  and  condemnation  and 

and  the  property  still  in  the  hands  of  the  captors.  Will  any  one  Paul 

sav  this  is  an  averaere  loss?  Is  there  a  dictum,  the  sentiment  of    ^    ^'' 

■  .  ,  .   .         r  •     1  -  Ins.  Co. 

an  elementary  writer,  even  the  opmion  oi  a  practical  insurer  to      tsj^  ^^ 

justify  such  a  name  for  such  a  loss  r  Do  any  of  the  rules  for  the 
adjustment  of  partial  losses  apply  to  it  ?  Has  any  of  the  property 
insured  come  to  the  owner's  hands,  or  to  any  one  for  his  use,  so 
as  to  form  a  deduction  from  the  whole  sum;  or  has  there  been 
damage  or  partial  injury?  Certainly  not,  and  without  this  there 
cannot  be  an  average  loss.  But  it  is  said  the  spes  reciiperandi 
may  be  valued  and  deducted.  By  what  rule  is  this  to  be  done  ? 
Contracts  of  this  kind  are  not  to  be  governed  by  the  vague 
notions  which  twelve  men  may  happen  to  form  of  the  chances 
of  war,  or  the  justice  of  foreign  nations.  They  are  contracts  to 
be  governed  by  facts  and  not  by  imagination;  and  nothing  can 
be  more  completely  indeterminate  than  the  value  of  this  hope. 
But  further;  the  spcs  recxipcrandi  goes  to  the  whole  property; 
it  is  either  good  for  the  whole,  or  good  for  nothing.  If  it  is  good 
for  the  whole,  the  assured  while  he  retains  it  should  not  recover 
any  thing;  if  it  is  good  for  nothing,  where  can  be  the  ground  of 
a  partial  loss  ?  The  truth  is  that  the  law  of  insurance,  to  do  per- 
fect justice  to  both  parties  has  said  to  the  assured,  you  sliall  not 
retain  the  sptn  reciipercmdi  upon  a  pretence  that  it  is  good  for 
nothing,  receive  from  the  underwriters  an  indemnity  for  your 
loss,  and  perhaps  afterwards  recover  the  thing  insured;  but  you 
may  within  a  reasonable  time  transfer  this  hope  to  the  insurtr, 
who  must  pay  the  sum  insured,  and  may  then  make  the  best  of 
the  property  for  himself. 

It  is  also  argued  that  if  this  is  not  an  average  lossj,  it  is  so 
total  as  not  to  require  abandonment.  This  proceeds  upon  a  mis- 
take. The  law  of  insurance  recognises  but  two  kinds  of  less, 
perfect  in  themselves,  and  which  require  no  act  of  the  assured 
to  vest  his  title  to  recover  for  tluin.  The  (irst  is  a  total  destruc- 
tion, as  by  sinking  at  sea,  blf)wing  up  &c.;  the  second  is  a  par- 
tial loss,  where  tlic  damage  or  injury  to  the  property  is  shoi-t  in 
some  degree  or  other  of  total  destruction.  When  eitherof  these 
losses  is  proved  by  the  assured,  hisrecoveiy  mustbe/jro  tanto. 
Under  certain  circumstances  the  same  law  authorizes  the  assu- 
red by  abandoning  his  interest  to  the  underwriters  to  recover  a 


52  CASES  IN  THE  SUPREME  COURT 

1803.  total  loss  from  them  in  cases  of  extensive  partial  loss,  and  also 

Wmson  ^"  cases  where  there  is  neither  partial  loss  nor  total  destruction, 

and  as  where  a  voyage  is  broken  up,  or  the  property  is  captured  and 

Paul  condemned  as  in  the  present  case.   But  in  these  cases  without 

,    ^**  abandonment  there  is  no  total  loss;  and  every  case  in  the  books 

Ins.  Co.  r     •  .  1  •        r 

N.  A.  ^''^y^  SO"  **  '^  ^^^^'^  ^"'^^  even  a  capture  may  turn  out,  and  it  oiten 
does  turn  out,  to  be  a  partial  loss;  and  as  such  may  be  made 
good  under  the  policy  as  well  as  those  extensive  partial  losses 
which  the  assured  has  neglected  to  convert  into  a  total  loss  by 
abandoning;  but  unless  the  assured  can  shew  a  true  partial  loss, 
or  has  abandoned  in  reasonable  time  so  as  to  have  a  claim  for 
a  total  loss,  his  indemnity  under  the  policy  is  gone.  The  prin- 
ciple Avill  stand  the  test  of  any  investigation;  it  is  part  oi  the 
essence  of  indemnity,  that  while  the  thing  insured  is  in  exis- 
tence, you  shall  not  recover  as  for  a  total  loss,  unless  you  have 
surrendered  to  the  insurers  your  claim  to  the  property  with  the 
right  of  pursuing  it  in  the  best  manner  they  can  devise. 

The  cases  which  have  been  cited  are  not  to  the  purpose.  In 
Havelock  v.  Rockxvood  ^md  in  Mitchell  v.  £r/?>  a  partial  loss  was 
proved  as  well  as  recovered;  and  the  language  of  Buller  J.  in 
the  latter  case  is  very  explicit.  "  I  am  of  the  same  opinion  with 
"  my'brother  Ashhiirst  that  where  the  voyage  is  lost  but  the  pro- 
"  peitv  is  saved,  the  owners  have  an  option  to  abandon,  but 
"  unless  they  do  elect,  it  is  only  an  average  loss."  Which  most 
evidentlv  means  that  total  loss  is  out  of  the  question  without 
abandonment,  and  that  the  recovery  can  only  be  for  an  average 
loss  where  such  a  loss  is  proved.  In  the  case  of  Bell  v.  Beve- 
r'ldge  {a)  which  was  a  case  of  capture  and  condemnation  like 

C«)   I  have  been  so  fortunate  as  to  procure  a  memorandum  of  the  Chief 
Justice's  charge  in  the  case  referred  to,  from  the  notes  of  his  honour  Judge 

Uniith. 

Siiii'PEN  C.  J.  "  Tlic  principal  point  rested  on  by  the  defendant  is  whe- 
llier  tliere  was  an  abandonment  in  proper  form  and  time.  As  to  forms  of  aban- 
donment, none  are  prescribed,  and  they  are  not  material.  It  is  sufficiently 
made  out  that  plainlifT meant  to  abimdon;  but  was  it  in  timer  It  must  be  in 
reasonable  time  after  he  lias  ucll  authenticated  intelligence  of  the  loss,  so 
that  he  shall  not  by  delay  derive  any  advantage.  The  time  between  the  intel- 
ligence atid  the  abandonment  was  however  a  long  time,  four  or  five  months. 
But  the  plaintiff  seemed  disposed  to  look  to  the  underwriters  from  tlic  firstjf 
if  he  waited  till  he  should  know  whetlier  he  could  recover  from  the  French 
government,  he  ought  not  to  recover.  //*  to  axerage  loss,  it  is  out  of  the 
'ruestiun."  Vide  4  Da//.  272.  s.  6. 


OF  PENNSYLVANIA. 


53 


Ins.  Co. 
N.  A. 


this,  his  honour  the  Chief  Justice  said,  "  when  there  is  a  claim      1803. 
"  for  a  total  loss,  and  proof  of  a  total  loss,  an  average  loss  \%'~77r 

.  .  W ATSOV 

"  out  of  the  question."  So  in  M'-Callmont  and  Boys  v.  Murga-       ^nd 
troyd^  decided  in  this  court.  Indeed  it  is  useless  to  turn  to      Paul 
cases  for  this  principle;  the  books  are  full  of  them;  and  if  it  were         '"• 
not  so,  why  have  not  plaintiffs,  in  the  numberless  cases  in  which 
they  have  failed  for  want  of  abandonment,  attempted  a  partial 
loss.  But  a  case  in  point  is  Bischoff'x.  Agar,  {ct) 

Shippen  C.  J.  The  action  is  brought  for  the  sum  under- 
written in  the  policy,  to  wit,  for  1000  dollars,  as  for  a  total  loss; 
the  jury  have  found  a  verdict  for  the  plaintiffs  for  the  sum  of  740 
dollars  and  10  cents,  as  for  a  partial  loss;  the  material  question 
is  whether  the  jury  could  fmd  as  they  have  done. 

Where  any  part  of  the  thing  insured  is  Icft^  and  in  that  case 
idone,  the  insured  is  bound  to  abandon  to  enable  him  to  recover 
as  for  a  total  loss;  the  only  penalty  for  not  abandoning  is  that 
the  assured  must  be  satisfied  with  an  average  loss.  Here  it  is 
said  there  was  something  left,  there  was  a  spes  reciipcrandi^ 
there  was  a  chance  of  a  reversal  of  the  sentence  of  condemna- 
tion, and  that  this  chance  should  have  been  ceded  to  the  under- 
writers. The  jur}' therefore  might  have  considered  this  as  an 
average  loss,  that  is  to  say,  they  might  have  estimated  the  spes 
recttperandi  and  chance  of  a  reversal  of  the  sentence  as  equal 
to  the  difference  between  the  sum  underwritten  and  the  sum 
found  and  obliged  the  insurers  to  pay  the  remainder  as  an 
average  loss.  That  a  partial  loss  may  be  found  in  an  action 
l)rought  for  a  total  loss  cannot  be  denied;  but  it  is  said  that 
where  the  demand  is  for  a  total  loss,  and  a  total  loss  in  proved^ 
there  cannot  be  a  verdict  for  a  partial  loss,  otherwise  the  neces- 
sity of  abandonment  might  in  all  cases  be  evaded  by  the  jury's 
being  called  upon  and  consenting  to  give  a  verdict  for  some 
small  matter  less  than  the  whole  sum  insured.  If  this  should 
ever  be  the  case,  it  will  always  be  in  the  power  of  the  court  to 
prevent  the  evasion;  but  the  case  in  1   T.  Rep.  and  some  others 
shew  that  a  verdict  may  be  found  for  a  partial  loss  where  a  total 
loss  is  proved  as  well  as  demanded,  if  the  party  had  chosen  to 
consider  it  as  such  by  an  abandonment.  And  it  is  not  compe- 
tfnt  to  the  defendant  to  say  there  is  sojv.ethini:^  left  for  tin  pur- 


54  CASES  IN  THE  SUPREME  COURT 

1803.      pose  of  making  an  abandonment  necessary,  and  yet  that  there 

"T^~~~was  not  king  left  to  make  it  an  average  loss.  There  seems  to  be 

and        no  injustice  done  to  the  defendants  l)y  the  finding  of  the  jury- 

Paul  But  it  is  said  that  although  there  are  cases  where  the  loss 

^'        would  have  been  total  and  recoverable  as  such  wheii  the  loss 

N.  A.  happened,  but  which  by  subsequent  events  were  become  not 
total,  the  insured  by  not  making  a  seasonable  abandonment 
might  be  entitled  to  an  average  loss;  "  but  where  the  loss  was 
**  total  originally,  and  continued  so  to  the  time  of  the  demand, 
"  there  can  be  no  partial  loss,  but  the  insured  by  not  abandon- 
"  ing  will  lose  his  right  of  recovering  from  the  underwriter 
'*  either  in  whole  or  in  part."  The  consequence  of  this  doctrine 
would  be  that  the  greater  the  loss  the  insured  should  suffer,  the 
less  the  insurer  should  pay.  An  insurance  is  a  contract  of  in- 
demnity for  a  loss,  within  the  policy,  and  the  law  imposes  no 
arbitrary  penalty  upon  either  party,  but  proceeds  upon  just  and 
uniform  principles:  thus  where  the  loss  sustained  is  such  as 
that  the  assured  by  an  abandonment  might  consider  it  as  a  total 
loss,  yet  waits  till  it  appears  part  of  the  property  is  saved,  he 
then  loses  his  right  of  recovering  as  for  a  total  loss,  and  must 
look  to  that  part  of  the  property  saved  according  to  its  value 
for  part  of  his  indemnitv,  and  has  recourse  to  the  underwriter 
for  the  remainder  of  the  sum  insured  as  an  average  loss.  So 
where  the  loss  is  such  as  might  be  considered  as  total  from  the 
beginning,  and  continues  so  to  the  time  of  the  demand,  it  is  then 
that  the  two  kinds  of  total  loss  are  to  be  considered;  if  the 
loss  is  of  that  kind  as  to  be  attended  with  a  total  destruction  of 
the  property,  as  being  consumed  by  fire,  or  sunk  in  the  sea,  the 
insured  in  that  case  may  recover  from  the  underwriter  xv'ithout 
any  abandonment^  as  there  is  nothing  left  to  abandon;  but  if  it  is 
said  a  capture  and  condemnation  is  not  a  loss  of  that  kind,  but 
leaves  a  apes  recuperundi  in  the  assured,  and  therefore  some- 
thing is  left,  although  only  a  chance,  for  the  abandonment  to 
operate  upon,  what  will  be  the  effect  of  not  abandoning? 
Exactly  the  same  as  in  the  former  case,  where  the  loss  must  be 
paid  after  deducting  the  value  of  the  thing  saved.  So  in  this  case 
the  loss  must  be  paid  after  deducting  the  value  of  the  thing  not 
ceded,  which  value  is  the  estimated  benefit  which  the  assured 
may  receive  from  retaining  the  chance  either  of  a  recapture  or 
the  reversal  of  the  decree  of  condemnation.  It  is  true  this  bene- 
fit is  not  so  easily  calculated  as  where  goods  are  saved  and  sold; 


OF  PENNSYLVANIA.  55 

but  the  principle  is  the  same;  and  where  the  jury  from  the  clr-      1803. 
cumstances  of  the  case,  and  from  their  experience  of  the  strength  ^ir  7" 

of  the  respective  belligerent  powers,  and  iht-  probable  injustice        and 
of  the  condemnation,  have  any  data  to  calculate  the  chance  of      Paul 
recovering  back  the  property,  and  can  reduce  it  to  a  fractional         ""' 
part  of  the  sum  insured,  I  see  no  reason  why  the  value  of  that      -v    a    ' 
chance  may  not  be  deducted  from  the  sum  insured,  and  the 
assured  recover  the  remainder  from  the  underwriters,  as  in  the 
case  of  common  average  losses;  for  it  is  only  the  value  of  the 
thing  neglected  to  be  ceded,  which  forms  a  deduction  in  any 
case  of  loss,  from  the  sum  insured. 

Yeatf.s  J.  "V\Tiere  an  insurance  has  been  made,  and  the  pro- 
i^erty  insured  has  wholly  perished  by  some  one  of  the  perils 
expressed  in  the  policy,  there  can  be  no  necessity  for  aban- 
doning or  offering  to  abandon;  for  there  being  nothing  in  exis- 
tence on  which  the  abandonment  can  possibly  operate,  it  would 
be  highly  absurd  to  declare  that  a  ceremony  vain  and  idle  should 
be  practised,  which  could  be  attended  with  no  benefit  whatever 
to  either  party.  On  this  point  may  be  cited  1  T.  R.  613.  615. 
2  Burr.  687.  1201.  1203.  1  Bl.  Rep.  276.  Park  161.  Ifit  rd.  In 
Great  Britain,  notwithstanding  a  capture  and  condemnation  by 
an  enemy,  the  owner  of  the  vessel  will  be  entitled  to  have  the 
propert)- again  on  payment  of  salvage.  But  this  was  an  effect 
produced  by  the  stat.  of  29  Geo.  2.  c.  34.  s.  24.;  and  hence  it  is 
that  Lord  Jllan.s-/ield  says  in  2  Burr.  695.  tht  Jus  poatliminii  in 
1! n (f /atic/ conunues  forever.  The  general  law  of  nations  must 
govern  us  on  this  head,  as  it  was  considered  in  ilfai/  1797,  when 
this  capture  took  place;  and  I  have  always  understood  that  such 
'  apture  and  condemnation  by  an  enemy  altered  the  j)ropertv. 
If  such  capture  and  condemnation  can  be  considered  equivalent 
to  an  entire  destruction  of  the  property  in  the  present  case,  as 
to  the  contracting  parties,  there  can  be  no  greater  necessity  for 
m  abandonment  in  the  one  instance  than  in  the  other. 

But  it  has  been  objected  that  here  the  vessel  existed  at  the  time 
of  the  demand  for  the  total  loss,  and  that  the  xpex  rccuperatitli 
was  not  wholly  extinguished,  inasmuch  as  appeals  were  allowed 
from  the  Freneli  court  of  admiralty  in  the  IVe.st  Indies  to  a  supe- 
rior tribunal.  On  this  latter  gjound  my  great  difliculty  has  arisen. 
iJccausc  if  the  insured  did  not  conceive  there  was  anv  chance 


56  CASES  IN  THE  SUPREME  COURT 

1803.      of  reversing  the  sentence  of  condemnation  on  an  appeal,  they 
,,.  oup-ht  not  to  preclude  the  insurers  from  exercisinjj:  their  own 

>V  ATSON  t>  I  '-> 

and  judgment  on  the  case,  and  should  furnish  them  with  the  proper 
Pavl  documents  to  enable  them  to  conduct  the  appeal.  Nevertheless 
-  ^'"  it  cannot  he  denied  that  all  the  authorities  concede  to  the  in- 
K.  \.  sured  the  election  whether  they  will  abandon  or  not,  and  that 
they  are  not  bound  to  make  an  offer  of  abandonment  if  any  part 
of  the  property  exists.  1  T.  i?.  615.  If  he  does  not  abandon  in 
such  cases  wherein  he  might  consider  it  as  a  total  loss,  though 
partial  in  its  nature,  by  declaring  his  early  and  unequivocal  op- 
lion  and  offering  to  abandon,  he  cannot  by  holding  back,  con- 
vert the  partial  loss  into  a  total  loss.  Fuller  v.  M'-Call.  Nor  can  it 
be  denied  that  if  a  suit  be  commenced  for  a  total  loss,  and  a  par- 
tial loss  be  proved,  such  partial  loss  may  be  recovered  therein. 
2  Burr.  904.  But  it  has  been  contended  that  where  in  such  suit 
a  total  loss  is  proved  at  the  trial,  no  instance  can  be  shewn  of  the 
recovery  of  a  partial  loss.  Admit  this  to  be  the  case,  still  if  no 
authority  can  be  shewn  establishing  a  different  doctrine,  and  no 
injustice  is  done  thereby,  the  plaintiffs  recovering  the  damages 
thevhave  actually  sustained  v^^ithin  one  of  the  perils  expressed 
in  the  policy,  I  see  no  reason  to  set  aside  the  verdict. 

Smith  J.  In  all  cases  the  insured  may  choose  not  to  aban- 
don. Burr.  697.  Park  162.  2d  ed.  2  Bac.  157.  1  T.  R.  615. 
They  are  not  bound  to  abandon;  there  never  was  a  case  in  which 
it  was  determined  that  they  were;  all  the  cases  have  said  that 
where  they  are  entitled  to  abandon,  if  any  part  of  the  property 
exists,  they  have  the  option  whether  they  will  abandon  or  not. 
If  the  property  existing  amounts  only  to  a  shilling,  the  insured 
may  in  an  action  for  a  partial  loss,  recover  the  whole  amount 
insured,  excepting  that  shilling. 

Now  it  is  settled  lav/  that  if  action  be  brought  for  a  total  loss, 
if  the  plaintiff  prove  but  a  partial  loss,  he  may  recover  as  for  a 
partial  loss.  It  is  also  settled  law  that  the  assured  cannot  recover 
as  for  a  total  loss  unless  he  cede  or  abandon  all  his  right  to  the 
underwriters.  Park  161.  92.  This  right  to  abandon  is  certainly 
generally  for  the  ease  and  often  a  real  benefit  of  the  assured. 
It  is  always  troublesome,  and  frequently  turns  out  to  the  loss 
of  the  underwriter.  He  will  therefore  almost  always  prefer 
pa}ing  for  a  partial  loss  to  paying  for  a  total  loss,  and  taking 


OF  PENNSYLVANIA.  57 

he  management  of  the  existing  property  upon  himself.  It  is      1803. 
carcely  ever  in  his  power  to  manage  it  to  so  great  advantage  w^tson 
as  the  assured  can.  and 

The  hope  of  recovering  cannot  be  lost  while  any  part  of  the      Paul 
property  exists,  and  the  assured  need  not  part  with  the  chance    j      U, 
unless  he  pleases.  If  he  does  not  part  with  it  he  has  more  diffi-      jsf  a. 
culty  in  recovering  than  if  he  does;  for  on  abandonment  he  has 
only  to  prove  the  gross  value  of  the  vessel  or  goods,  and  the 
loss,  which  is  generallv  easily  made;  but  if  he  be  content  to 
retain  the  chance  of  recovering  any  part,  the  proof  to  recover 
on  a  partial  loss  is  more  diflicult  to  be  made  out.  He  must  not 
inly  prove  the  value,  but  he  must  prove  the  amount  of  the  inju- 
n-  done  to  every  part,  and  the  value  of  that  part  of  it  which  is 
in  existence.   If  the  assured  choose  to  take  this  burden  by  not 
abandoning  when  he  may,  he  cannot  recover  for  a  total  loss  if 
any  of  the  property  exists;  and  in  estimating  the  amount  of  the 
average  loss  the  jury  will  make  a  due  deduction  for  his  chance 
of  recovering  according  to  its  foundation. 

The  cases  in  E-sp.  Rep.  23 T.  1  T.  R.  608.  are  substantlally 
the  same  with  the  present.  There  the  plaintiff  might  have  reco- 
vered as  for  a  total  loss  had  he  abandoned  in  due  time;  so  here. 
There  the  plaintiff  recovered  as  for  a  partial  loss.  What  princi- 
ple of  law  properly  understood,  what  rule  of  practice  was  there 
to  prevent  him  from  recovering  for  a  partial  loss  ?  The  right  to 
recover  for  an  average  loss  was  not  even  called  in  question  by 
the  counsel;  ihcy  properly  contend  and  the  court  decide  that 
plaintiffs  could  not  recover  more  than  an  average  loss. 

No  hardship  on  the  defendants  as  to  the  amount  of  the  dama- 
ges found,  is  suggested.  "  The  defendants  came  prepared  to 
■'  shew  either  that  no  damages  liad  happened.at  4II,  or  at  least 
*•'  that  damages  did  not  happen  to  such  a  degi'ce  as  plainlill' 
''  alleged  in  his  declaration,  or  that  they  did  not  sign  the  poli- 
"  cy."  Burr.  906,  / .  "  It  is  an  action  of  damages  in  which  plaiu- 
"  tiff  is  to  recover  his  damages  according  to  his  proof." 

Did  the  plaintiffs  gain  any  benefit,  did  tlie  defendants  lojie 
any  advantage  by  the  recovery  as  for  a  partial  loss,  my  opiniou 
would  be  that  plaintiffs  ought  not  to  recover;  but  I  cannot, dis- 
cover from  any  part  of  the  argument  that  there  is  any  benefit  to 
Uie  plaintiffs  or  any  disadvantage  ro  ti\e  defeiulants. 

I  acknowledge  that  before  I  sgw  tlur  case  19  1  T.  R.  GOB.  the 
inclination  of  nn-  mind  was  in  favour  of  the  defendants  on  this 

Vf.r .  r.  H     ' 


58  CASES  IN  Till-:  SUP1?KME  COURT 

180J.     point  as  a  point  of  strict  law,  although  I  would  not  have  signi- 

T7^  ~"fiecl  mv  approbation  otinsistiny;  on  it  by  the  deftndants. 

and  Whtthcr  the  nolicc  of  and  demand  for  a  total  loss  be  equi- 

Pai  I,      valent  to  an  offer  to  abandon;  whether  the  refusal  to  pay  on 

,    ^''         other  grounds,  does  or  docs  not  amount  to  a  waiver  of  such 
Ins.  Co.       „      .    .  .  •   -        1 

jvj-  ^       offer.  It  IS  not  necessary  to  give  an  opmion,  because  my  opinion 

is,  on  principles  supported  by  cases,  and  there  being  neither 

principle  nor  case  to  the  contrary,  that  the  verdict  is  right. 

Brackenridge  J.  I  am  of  opinion  that  the  verdict  should 
stand,  upon  this  principle,  that  under  the  circumstances  of 
this  case  there  was  not  a  necessity  of  an  express  offer  to  aban- 
don. In  the  case  of  a  total  loss  by  sinking  or  burning,  all  spes 
recuperandi  is  gone,  or  supposed  to  be  gone,  and  to  supersede 
the  n.  cessity  of  an  offer  to  abandon. 

In  this  case  of  capture  and  condemnation,  and  as  said  by 
counsel  particularly  a  French  condv  mnation,  the  hope  of  reco- 
very v.as  but  a  bare  possibility;  it  was  ideal.  The  fact  is,  }t  was 
thought  to  be  nothing;  and  it  would  have  been  a  burlesque,  an 
insult,  to  talk  of  an  interest  remaining,  or  to  make  an  offer  to 
abandon.  This  rebuts  the  presumption  arising  from  the  not 
expressly  offering  to  abandon,  that  there  was  an  idea  of  retain- 
ing a  chance. 

I  admit  there  was  an  ideal  interest  to  be  abandoned  because 
the  condemnation  on  appeal  might  be  reversed,  or  the  govern- 
ment of  the  captured  might  indemnify,  or  that  of  the  capturing 
compensate  for  the  spoliation;  but  in  the  public  estimation  there 
was  no  hope,  and  the  plaintiffs  reasonably  might  have  thought 
there  was  nothing  to  abandon. 

The  notice  of  the  loss  and  demand  of  payment  would  seem 
in  the  first  instance  to  be  sufficient,  and  to  put  it  upon  the  defen- 
dants to  shew  that  they  had  any  wish  to  have  the  abandonment 
made.  The  saying  nothing  was  in  fact  a  waiver. 

I  think  mysi-lf  on  safest  ground  while  going  on  the  first  point. 
As  to  the  other,  that  in  a  case  of  total  loss,  without  an  offer  to 
abandon,  the  insured  may  receive  a  part,  the  jury  taking  into 
view  and  allowing  or  deducting  for  the  chance  of  recovering 
the  possibility,  it  might  seem  reasonable;  but  the  idea  is  new, 
as  I  take  it,  in  the  books.  Nor  is  it  analogous  to  the  law  mer- 
chant in  the  case  of  a  bill  of  exchange.  On  the  nt  of  notice 
to  the  indorser  of  nonpayment  by  the  drawee,  it  cannot  be  given 


OF  PENNSYLVANIA.  5^ 

in  evidence,  as  superseding  the  notice  or  deducting  for  it,  tliat      1803. 
the  drawer  was  worth  nothing  or  a  part  of  the  sum.  Watson 

Have  we  a  right  to  put  the  insurer  in  the  power  of  the  jury        and 
as  to  the  value  of  his  chance,  which  might  have  been  aban-      Paul 
doned.''  I  think  not.  He  has  a  right  to  be  the  judge  of  it  him-         ^'* 
self.  There  is  no  average  of  this  kind  in  the  books.  The  bare      tsj    a^ 
o  possibility  in  this  case  rebuts  the  presumption  that  the  insured 
meant  to  retain  the  chance. 

The  not  offering  in  express  terms  the  abandonment  is  waived 
by  the  silence,  and  the  probability  is  that  it  was  omitted  from 

the  ignorance  of  the  insured. 

Judgment  for  the  Plaintiffs. 


Hutch EsoN  aicainst  Johnson.  Wednesday, 

*-*  Sejiteniber 

TN  this  case  .S".  Levy  for  the  defendant  obtained  a  rule  upon  ^  ^^^j^  ^^ 
-*-  the  plaintiff  to  shew  his  cause  of  action,  and  why  the  U«'fen-slie\v  cause 
dant  should  not  be  discharged  on  common  bail.  The  rule  was  *'^,^^  j.|.""^.'j^^ 
rettirnable  to  Friday  the  9th,  but  was  then  enlarged  to  this  day,  up';n  the 
when  Moylan  the  attorney  of  the  plaintiff  upon  record,  who  had  [|^^y"i,'c.y  ^ 
been  unable  to  communicate  with  his  client,  objected  to  the  ser- 
tIcc  of  the  rule,  which  had  been  made  personally  upon  him,  and 
not  upon  the  plaintiff. 

Per  Curiam.  The  practice  of  this  court  is  that  a  rule  to  shew 
cause  of  action  is  well  served  upon  the  attorney  in  the  suit.  It 
is  not  necessary  that  service  should  be  on  the  plaintiff  personal- 
ly; but  if  he  lives  out  of  the  state,  the  court  under  proper  cir- 
cumstances will  grant  time.  As  such  circumstances  have  been 
suggested  here,  the  court  make  the  rule  absolute  unless  cause 
be  shewn  during  the  term. 


Lessee  of  the  Trustees  of  the  Seliool  in  Lower  Dublin  '^hnrBday, 

Sciitcmljtr 

(ifrmnst  Paul.  i^tii. 

THIS  ejectment  was  referred  under  a  rule  of  court;  and  the  ^"'^'"I'''""" 
r  -111  trt  a  report 

referees  awarded  that  the  plaintiffs  should  recover  the  „r  referees 

strip  of  land  in  controversv,  with  (k/.  damages  and  Or/,  costs.  "'"^'^  I"""^ 

'        _  •  . '  oiit  some 

Exceptions  to  the  report  were  filed  by  the  defendant  as  follows:  plain  mis- 

tuke  in  fact 
'jr  in  law,  ollierwise  the  court  will  not  investigate  the  merits  ol'thc  rcpor';. 


Paul 


60  CASES  IN  THE  SUPREME  COURT 

1803.  !•  Because  it  appeared  before  the  referees  that  the  defendant 

Lower"  ^"^  those  under  whom  he  chiimfd  had  been  in  possession  of  the 
Dublin  premises  in  controversy,  and  had  their  fence  around  the  same 
School  from  time  beyond  the  memory  of  any  person  now  living;  and 
that  the  lines  called  for  by  the  conveyance  of  Richard  Thomas 
to  Samuel  Thomas  on  the  8th  o{  yaimary  1745,  under  whom 
the  defendant  claims,  take  in  and  include  the  premises  in 
controversy. 

2.  Because  the  referees  in  forming  the  award  undertook 
M'ithout  any  evidence  to  shorten  by  six  perches  the  last  course 
but  one  of  the  defendant's  land,  and  to  lengthen  by  five  perches 
the  last  course  thereof. 

3.  Because  the  referees  had  no  evidence  whereby  to  fix  the 
lines  and  boundaries  of  the  premises  in  controversy  in  favour  of 
the  plaintiff. 

The  cause  was  now  called  on  for  argument  upon  the  excep- 
tions, when  M.  Levy  for  the  defendant  moved  a  postponement 
upon  the  ground  that  one  of  the  referees,  whose  attendance  he 
was  unable  to  procure,  was  material  to  shew  the  truth  of  the 
exceptions. 

Raxvle  for  the  plaintiff  objected,  because  from  the  very  nature 
of  the  exceptions  the  referees  could  not  be  examined  without 
opening  the  whole  ground  of  controversy.  The  exceptions  go 
to  the  whole  matter  in  dispute,  and  they  do  not  point  out  any 
circumstances  which  shew  a  plain  mistake  in  fact  or  in  law; 
without  which  the  objections  must  be  confined  to  the  face  of  the 
report,  which  in  this  instance  is  unexceptionable. 

Levy  in  reply  cited  Pr'ingle  v.  M'-Clenachan^  (a)  where  the 
court  went  out  of  the  report  to  examine  the  merits.  Evidence 
must  be  heard  to  ascertain  whether  there  is  a  plain  mistake  or 
not. 

Shippen  C.  J.  A  plain  mistake  must  be  stated  in  the  first 
instance;  and  if  evidence  must  be  heard  in  order  to  prove  it,  the 
court  will  listen  to  it.  But  here  no  plain  mistake  is  pointed  out, 
and  therefore  we  would  not  hear  the  referee  if  he  were  present. 

Per  Curiam.  Report  confirmed. 

(«)  1  DalL  486. 


OP  PENNSYLVANIA.  6.C 

1803. 


.--  Thursday, 

303  M'Laughlin  against  Scot.  September 

11 

12  ^"T^HIS  cause  was  referred  under  a  rule  of  court,  and  the  An  award  of 

B  »  -»  >  costs  IS  O'OOu 

1*    -■-  referees  awarded  for  the  plaintiif  the  sum  of  ninety-one  althouj^h  the 

208 dollars  thirty  cents,  and  costs  of  suit.  The  rule  contained  noP''"cipal 

provision  that  costs  should  abide  the  event  of  the  suit,  and  the  ^j  ^y  the  ro- 

prothonotar}^  taxed  the  plaintiff  his  lull  costs.  Wvcts  would 

not  carry 
.      .  ,  ,  r         1   costs  if  foujd. 

S.  Levy  for  the  defendant  now  insisted  that  the  act  of  25th  by  u  jury. 

September  1786,  which  provides  that  if  any  plaintiff  shall  bring 

or  commence  any  suit  or  action  in  the  Supreme  Court  and  shall 

not  recover  thereupon  more  than  50/.  he  shall  not  be  iillowed 

any  costs,  was  fatal  to  the  plaintiff's  claim,  in  the  present  case; 

^or  the  act  extended  to  all  modes  of  recovery,  as  well  by  award 

of  referees  as  by  verdict  of  a  jury. 

Burd^  contra. 

Per  Curiam.  It  has  been  over  and  over  again  decided  that 
the  party  takes  costs  if  the  referees  give  them  to  him;  provided 
their  authority  is  not  limited  by  a  special  agreement,  (ci) 


b   ot 

Rowley  against  Bkown,  administrator  of  Webb.     Monday, 

Decombti 
TN  this  case  an  execution  was  levied  upon  the  real  estate  of 7^0  shenfT 
-■-  Webb^  consisting  of  three  tenements  and  the  lot  of  ground  <"a""ot  nuke 
upon  which  they  were  erected.  The  lot  was  so  divided  in  point  s_.(le  „{•  ,1^. 

of  fact,  that  a  portion  of  it  was  used  with  each  tenement;  but^'V'"^  panels 

1  11  /•    1       1       1        1         I       1  "*  piopcrtv 

an  entire  ground  rent  was  payable  out  or  the  lot  by  the  deed  wliic  li  hchvut, 

under  which  Wvbh  held,  and  there  had  been  no  apportionment  ^=''^'^" '"  <^c- 

,  ,  ,  .,-,,  ,     .  ,  ,    cut  ion.  Be 

subsequently  agreed  upon.     1  he  property  being  coiul(  nmedjsiionidsdl 

the  sheriff  sold  the  wlifile  in  one  bodv.  *'"-'"  *^'* 

tnutly. 

Ra-wle  for  the  defendant  obtained  a  rule  to  shew  cause  why 
the  sale  should  not  be  set  aside  uj)on  the  ground  that  the  parcels 
of  property  taken  in  execution  were  distinct,  and  should  have 
been  %u\i\  separately. 

(a)  Kydon  Avsards  134 


62  CASES  IN  THK  SUPREME  COURT 

1803.  ^'^(^  ^^^  ^^^  plaintiff"  now  procecdtd  to  shew  cause;  ani 

*• after  setting  forth  the  facts  as  above  stated,  he  argued  that  as 

there  was  an  undivided  ground  rent  issuing  out  of  the  pro- 
Brown.  perty,  it  was  in  fact  but  one  parcel.  That  it  was  impossible  lor 
either  sheriff"  or  plaintiff"  to  say  in  what  manner  the  gi-ound 
rent  should  be  apportioned,  without  which  there  would  be  such 
an  uncertaintv  as  to  the  thn^g  sold,  that  the  defendant  would 
rather  lose  than  gain;  and  further,  that  the  sheriff"  was  not 
authorized  to  say  even  what  portion  of  the  lot  should  go  with 
each  tenement. 

Raxvle  in  reply,  said  that  it  was  every  day's  practice  to  sell 
distinctly  tenements  and  lots  on  which  there  was  an  unappor- 
tioned  ground  rent;  and  to  leave  the  apportionment  to  subse- 
quent arrang!  ment  by  the  purchasers.  The  division  of  the  lots 
in  point  of  fact  furnished  sufficient  boundaries  to  each  portion; 
the)'  should  have  been  sold  as  they  were  then  known  and  occu- 
pied. In  every  case  where  parcels  of  property  can  be  sold  dis- 
tincdv,  the  law  for  the  protection  of  the  debtor  prohibits  a 
lumping  sale. 

Per  Curiam.  It  is  the  rule  of  this  court  to  disallow  in  every 
case  a  lumping  sale  by  the  sheriff"  where  from  the  distinctness 
of  the  items  of  property  he  can  make  distinct  sales.  It  is  essen> 
tial  to  justice  and  to  the  protection  of  unfortunate  debtors  that 
this  should  be  the  general  rule;  any  other  would  lead  to  the 
most  shameful  sacrifices  of  property.  There  may  be  exceptions, 
-  .  but  the  purchaser  must  bring  himself  within  them.  The  present 

case  is  not  one;  the  tenements  and  lots  were  here  sufficiently 
distinct  both  in  law  and  fact,  and  there  was  no  reason  for  deviatr 
ing  from  the  common  practice. 

Rule  absolute. 


OF  PENNSYLVANIA  6^ 

1803. 


^ '  /  / '  "^  6  ^ 


^\  %  M'C u L  L  o u G  H  administrator  of  P a  r  l  a  n  d  against      j^^^^^er 
|j5  Young.  i^th. 

IN  this  case  it  was  agreed  by  the  counsel  to  submit  a  single  Letters  of 
question  to  the  consideration  of  the  court;  namely,  whether  j'j^J^"^^^^^^^^ 
the  plaintiff  as  administrator  Sec.  could  maintain   his  action  under  seal 
against  the  detV.ndant  by  virtue  of  letters  of  admmistration  ^^^^^  ^^.^  ^^ 

granted  to  him  in  the  state  of  MariiloJid.  sufticient 

°  -^  authority  to 

,  .  P   ,  f.  maintain  ill 

M.  Levy  for  the  plaintiff  read  the  hrst  section  ot  the  act  ©taction  in 

1705,  which  among  other  things  provides  that  all  letters  of  ad-^^is  state 

ministration  granted  oitt  of  this  province  being  produced  here 

under  the  seals  of  the  courts  or  offices  granting  the  same,  shall 

be  as  sufficient  to  enablj  the  administrators  by  themselves  or 

attomies  to  bring  their  actions  in  any  court  within  this  province, 

as  if  the  same  administrations  were  granted  here,  and  produced 

under  the  seal  of  the  register  general's  office  of  this  province. 

1  St.  Lmva  54.  He  said  that  the  language  of  this  act  was  too 

unequivocal  to  admit   of  an  argument,  and  that  to  deny  the 

plaintiff's  authority  to  sue  as  administrator,  was  in  fact  to  repeal 

the  law. 

Hof)kinson  for  the  defendant  referred  to  the  case  o{Grccmeetal. 
V.  Harris  (a)  decided  in  1 789,  in  which  this  court  held  that  let- 
ters of  administration  granted  by  the  Archbishop  of  I'ork  were 
not  a  sufficient  authority  to  maintain  an  action  in  this  state.  He 
contended  that  this  decision  was  an  authority  for  asserting  that 
the  law  of  1705  was  in  this  particular  obsolete.  That  it  was 
impossible  to  untlerstand  the  words  oi/t  of  this-  province  mihQiv 
literal  sense  without  overthrowing  Grccme  v.  Harris^  and  there 
was  no  warrant  in  the  law  for  understanding  them  in  any  other 
sense.  It  must  therefore  be  presumed  to  have  been  the  opinion 
of  the  court*  that  inasmuch  as  the  law  was  passed  when  this 
state  was  a  Vviy  insignificant  colony,  and  when  convenience 
may  have  justified  the  comity  that  was  shewn  to  foreign  letters 
of  administration,  the  reason  of  it  ceased  when  v.  e  became  an 
independent  government,  and  the;  amount  and  variety  ol  per- 
sonal property  had  greatly  increased.  It  is  in  opposition  to  the 
law  of  some  of  our  sister  states,' and  therefore  wants  recipro- 
cal 1  yj,7//.'i'»<' 


64  CASES  liN  THE  SUPREME  COURT 

1803.      "^'^^  J  It  must  frequently  produce  collision  between  adniinistra- 

',.  ,,  tors  of  diilerent  states;  and  it  proceeds  upon  a  misconceiJtion  ol 

LOUGH     ^^^'  '^ture  of  letters  of  administration,  which  are  a  mere  local 

V.         authority  from  an  officer  of  limited  jurisdiction.   One  inconve- 

YouNG.    nience  which  must  result  from  it  is  monstrous; — the  persona) 

property  of  an  intestate  in  this  commonwealth,  and  which  is  the 

proper  fund  for  pavment  of  his  debts  here,  may  be  taken  away 

and  applied  bv  the  law  of  another  state  in  direct  hostility  to  the 

interest  of  our  own  citizens.  This  certainly  will  be  the  effect 

of  acknowledging  letters  from  Delaxvare^  where  an  intestate's 

creditors  living  within  that  state  are  first  satisfied. 

Per  Curiam.  The  act  of  Assembly  referred  to  has  uniformly 
been  considered  not  to  extend  further  than  to  the  provinces  in 
this  country  at  the  time  the  act  was  passed,  and  Grtcme  v.  Har- 
ris turned  upon  that  ground.  At  the  same  time  it  has  been  as 
uniformly  understood  both  before  and  since  the  revolution  that 
letters  of  administration  granted  in  a  sister  state  arc  a  sufficient 
authority  to  maintain  an  action  here;  and  such  has  been  the 
practice  without  regard  to  the  particular  intestate  laws  of  the 
state  where  they  have  been  granted.  There  may  be  indeed  great 
inconveniences  from  the  law,  but  it  lies  with  the  legislature  to 
remedy  them.  We  are  of  opinion  with  the  plaintiff. 

I  lb     64 

'  93r383 

14s r 301 

====^^  ir  123' 

_4 34j 

Tuesihj,       Cramond    uiid  othei's,    Executors  of   Cay   surviving 
Decenbcr        partner  of  Clow,  against  The  President,   Directors 
aixl  Company  of  the  Bank  of  the  United  States. 


20th 


A.  isndebt-  'HT^HIS  was  a  scire  facias  upon  a  judgment  obtained  in  Sep- 
edtoB.  ami    X    tember  1801,  against  the  defendants  as  garnishees  in  a 

C.  puitncrs  .  i     i        i-  n        • 

111  tnidc  who  foreign  attachment  against  James  Brorvn;  and  the  following 

issue  a  p)-     j.ggj,  ^^.j^g  stated  for  the  Court's  oi>inion: 

reigii  attach-  ' 

ment  f.gainst 

his  effects  in      "  On  the  19th  of  August  1 793,  David  Cay  and  Andrew  CloWj 

D^Af!^ef)he  "  ^^'^^°  ^^^^  carried  on  business  under  the  firm  of  Andrew  Clow 

deathiii' B.  _  , 

and  C  the  CTcecutors  of  C.  who  was  surviving  partner,  obtain  judgnient  against  the  de- 
fendant and  the  garnishee.  B  and  C.  were  liie  indorsers  of  a  note  whicli  was  discounted 
by  D.  and  which  fell  due  after  their  death  and  was  protested  for  nonpayment.  The  debt 
to  D.  by  B.  and  C.  cannot  be  set  off  agninst  tlic  debt  due  by  D.  as  garnishee  of  A. to  C's 
executors.  A.'s  debt  upon  Die  dealh  of  B.  and  C  became  vested  in  their  creditors  gene- 
rally, whose  rii^hts  could  not  be  chan^^cd  by  any  subsequent  proceedings  between  the  exe- 
cutors, and  garnishee. 


OF  PENNSYLVANIA.  65 

"  and  company,  indorsed  a  note  drawn  by  Henry  Darrach^      1803. 
"  bearing  that  date  for  the  sum  of  852  dolls.  88  cents,  which  Cr^moj^^ 
"  note  was  discounted  by  the  defendants,  and  the  amount  paid         7,, 
"  to  the  indorsers.   Before  the  note  became  due  the  drawer  and  Bank  U.  S. 
'*  indorsers  died,  and  notice  of  nonpayment  was  duly  given  to 
"  the  executors  of  the  surviving  partner  David  Cay." 

"On  the  11th  April  1793,  Andre7v  Cloxv  and  David  Cay 
"  laid  a  foreign  attachment  on  the  property  of  a  certain  James 
"  Brown^  in  the  hands  of  the  defendants;  and  judgment  was 
''  obtained  thereon  on  the  14ih  June  1794,  in  the  names  of  the 
"  present  plaintiffs  as  executors  of  David  Cay  surviving  partner 
"  &c.  A  writ  of  inquiry  was  issued  and  the  sum  of  25,543/.  2*. 
"  Zd.  was  found  due  to  the  plaintiffs,  upon  which  there  was  final 
"judgment.  A  scire  facias  then  issued  against  the  defendants 
"  as  garnishees  returnable  to  Septcinber  Term  1797,  and  upon 
"  the  10th  September  1801,  a  verdict  was  found  for  the  plain- 
"  tiffs  for  3354  dolls.,  and  on  the  same  day  a  judgment  nisi.'''' 

*'  The  defendants  as  garnishees  of  Ja^nes  Brown  are  in  pos- 
"  session  of  tliirteen  shares  of  bunk  stock,  and  of  the  dividends 
"  thereon  arising  and  accruing  since  the  1st  July  1801,  which 
"  are  subject  to  this  attachment.  They  have  received  payment 
"  of  284  dolls.  27  cents,  being  a  dividend  of  the  estate  of  Henry 
"  Darrach  the  drawer  of  said  note." 

"  The  question  for  the  opinion  of  the  court  is,  whether  the 
"  deftiidants  in  this  action  are  entitled  to  set  off  against  the 
"  demand  of  the  plaintiffs  in  this  action  the  balance  due  on  the 
"  said  note,  with  interest." 

It  was  argued  by  E.  Tllghman  and  Ingx-rsoll  for  the  plain- 
tiffs, and  by  Raxvlc  and  Lewis  for  the  defendants. 

For  the  plaintiffs  it  was  contended  that  by  the  death  of  Cay 
surviving  j)artner  of  Clorv,  the  debt  due  by  Brown  to  Clow  and 
Cay  vested  in  the  executors  of  the  surviving  partner  for  the 
Interest  of  the  creditors  generally;  among  whom  the  bank  could 
come  in  ox\\y  pro  rata  according  to  the  quality  of  their  debt. 
Cloxv  and  Cay  died  before  the  note  with  their  indorsement  fell 
due,  before  judgment  against  the  garnishee,  and  therefore 
before  there  subsisted  between  them  and  the  bank  any  debts 
which  could  give  rise  to  the  question  of  set-off.  But  at  their 
death  all  their  property  both  goods  and  credits,  and  among 
others  the  right  to  Broxvn^s  money,  became  assets  in  the  plain- 

Vor.  I.  I 


(iO  CASKS  IN  TH1-:  SUPREME  COURT 

1803.      l^i'^s'  Hiuuls,  l)ound  by  our  act  of  distributions  to  flow  in  particu- 

T!  lar  chiuincls  to  the  creditors,  and  not  subject  to  any  chancre.   If 

7,.         the  claim  of  the  defendants  is  allowed,  the  rights  of  the  credi- 

Bank  U.  S.  tors  are  so  far  devested,  and  the  bank,  a  simple  contract  creditor, 

will  take  precedence  of  even  higher  debts. 

But  further,  the  question  of  set-oflF  cannot  occur  where  there 
is  no  mutuality  of  debt  between  the  parties.  The  claim  by  the 
plaintiffs  is  not  of  a  debt  due  by  the  defendants  to  them^  but  to 
yaincs  Brown;  and  the  ol>ject  of  the  defendants  is  not  to  defal- 
cate a  debt  due  to  them  by  James  Broivn^  but  by  t\\^  plain  tiffs  i 
of  course  the  set-offhas  no  aspect  toward  the  debt  which  it  would 
diminish.  The  debts  are  not  mutual,  they  are  to  and  from, 
diffeivnt  persons,  the  one  is  collateral  and  the  other  direct;  and 
in  such  a  case  a  set-off  was  never  heard  of.  If  this  were  prac- 
ticable, a  garnishee  might  have  a  double  set-off,  one  against  the 
deff  ndant  in  the  action,  and  another  against  the  plaintiff,  a  cir- 
cumstance equally  novel. 

Consider  the  operation  of  our  foreign  attachment  law.  Its 
object  is  to  compel  the  defendapt's  appearance;  and  when  that 
is  obtained  within  the  period  allowed,  all  intervening  acts  with 
the  garnishee  are  avoided,  and  he  is  completely  discharged. 
1  St,  Laws  60.  Act  of  1705.,  sec.  2.  If  then  the  garnishee  estab- 
lishes this  set-off  upon  the  scire  facias^  and  the  defendant  after- 
wards enters  special  bail,  the  set-off  is  defeated,  and  the  defen- 
dant may  recover  his  whole  mone)'  from  the  garnishee.  The 
set-off  is  to  be  effectual  or  not  according  to  circumstances;  and 
this  clearly  shows  that  it  does  not  partake  of  the  nature  of  a 
legal  set-off,  which  once  made  is  permanently  good.  So  after 
execution  awarded,  the  plaintiff  is  to  find  security  that  if  the 
defendant  in  the  attachment  shall  within  a  year  and  a  day  come 
into  court  and  disprove  or  avoid  the  debt  recovered  by  the 
plaintiff  against  him,  he  shall  restore  the  goods  by  him  attached, 
or  so  much  thereof  as  shall  be  disproved  or  avoided.  Sec.  4.  If 
this  set-off  be  good,  he  may  recover  but  one  half  of  the  goods 
attached,  and  his  security  on  the  execution  will  nevertheless 
bind  him  to  restore  the  whole  in  case  the  whole  be  disproved. 
To  be  sure,  in  a  case  where  the  sum  set-off  was  completely  due 
by  the  plaintiff  to  the  garnishee,  he  would  pay  no  more  than  was 
due  from  him  to  both  parties,  if  he  paid  the  whole  sum  dis- 
proved; but  where  a  question  of  assets,  as  in  this  case,  is  invol- 
\ed  in  the  sum  due  to  the  garnishee,  it  is  very  clear  that  he 


OF  PENNSYLVANIA.  67 

might  be  compelled  to  pay  more  than  was  due  from  him;  and      1803. 
this  affords  a  strone:  argument  that  a  set-off  with  such  conse- "TT" 
quences  can  never  be  allowed.  x". 

The  language  of  the  acts  of  Assembly  is  equally  cogent.  The  Bank  U.  S. 
plaintiff  is  entitled  to  the  whole  amount  at  the  time  of  the  attach- 
ment due  to  the  defendant  by  the  garnishee;  and  if  the  gar- 
nishee does  not  find  security  for  its  being  forthcoming,  whether 
goods  or  money,  the  sheriff  must  take  it  from  his  hands  and 
secure  it  himself.  Could  a  plea  of  set-off  against  plaintiff  affect 
the  sum  thus  taken  from  his  hands?  And  can  his  giving  secu- 
rity for  it  alter  the  case  of  the  plaintiff?  No  plea  by  garnishee 
to  the  scire  facias  will  be  good,  except  what  is  tantamount  to 
nulla  bona;  and  accordingly  all  the  interrogatories  are  directed  to 
that  point  by  the  act  of  Assembly.  2  St.  Laxvs  734.  sec.  2. 

The  defendants  are  too  late  with  their  demand  of  set-off  on 
the  present  scire  Jaci  as.  The  first  scire  facias^  which  was  follow- 
ed by  the  judgment  in  September  1 80 ! ,  was  that  upon  which  the 
garnishee  should  have  claimed  his  right.  The  present  scire  fa- 
cias is  brought  vipon  the  judgment  which  established  the  right 
of  the  plaintifls  to  thirteen  shares  of  bank  stock,  to  recover  the 
dividends  since  accruing;  and  no  plea  can  be  sustained  in  answer 
to  the  present  scire  facias^  which  could  have  been  offered  pre»- 
vious  to  the  judgment. 

For  the  defendants.  It  is  necessary  to  shew  that  we  are  in  time 
before  we  proceed  to  the  legality  of  our  demand.  It  is  perfectly 
clear  that  the  defendants  cannot  plead  to  the  scire  facias  what 
they  could  have  pleaded  to  the  first  judgment.  But  it  is  proper 
to  accompany  this  position  with  an  explanation;  they  cannot 
plead  to  this  scire  facias  that  which  will  defeat  or  aff'ect  the  first 
judgment;  this  is  the  rule,  and  we  are  perfectly  within  its  pro- 
vision at  this  moment.  The  present  scire  facias  is  not  to  exe- 
cute the  old  judgment,  but  to  get  possession  of  a  nciv  property, 
the  dividends  since  declared;  and  our  plea  is  not  to  affect  that 
judgment,  but  to  defend  ourselves  against  a  second  demand 
accruing  since,  and  not  depending  on  the  first  scire  facias.  But 
a  right  to  set-off  cannot  be  impaired  by  any  act  of  the  plaintiff; 
he  cannot  force  us  to  set-off  at  any  time,  Bas/terville  v.  Brown; 
(u)  and  this  being  to  every  intent  a  new  action,  we  arc  in  time 

(n)  •?  Jinrr.  1?30 


68  CASES  IN  THE  SUPREME  COURT 

1 803.      upon  every  gound.  The  omission  of  the  bank  in  the  first  instance 

Ck\mond  ^^'^^  ^  mere  oversight;  and  there  is  nothing  in  precedent  or  prin- 

V.         ciple  against  its  being  cured  at  this  day;  certainly  nothing  inprin- 

Bai\k  U.  S.  ciple,  for  it  is  analogous  to  the  known  case  of  a  tenant  holding 

his  landlord's  note;  and  it  is  no  hardship  upon  the  debtor,  for  he 

has  sufiered  nothing  by  the  omission,  as  he  would,  if  it  were  to 

touch  the  original  judgment. 

[Yeates  J.  This  point  has  less  weight  than  at  first  it  appear- 
ed to  have,  since  the  present  is  a  new  claim  for  dividends,  to 
which  there  has  been  no  opportunity  of  answering  until  now.J 

As  to  the  general  question.  Set-offs  are  favoured  by  law.  Col- 
lins V.  Collins,  (u)  They  are  instituted  to  prevent  circuity  of  ac- 
tion. 1  St.  Laxvs  65.  The  objection  that  a  new  distribution  of 
assets  would  be  produced  by  allowing  the  set-off,  has  been  made 
in  another  case,  and  overruled.  Broxvn  v.  Holyoke.  (J))  If  there 
be  mutual  debts  subsisting  between  the  testator  and  I.  S.,  the 
executor  will  be  indemnified  in  setting  off  I.  S.'s  debt  against 
his  testator's,  though  they  be  of  different  characters.  Priority 
of  payment  must  have  a  relation  to  the  source  of  payment— the 
assets;  now  assets  in  this  case  are  only  the  balance  due  from 
a  debtor  to  the  testator,  cross  claims  deducted.  If  this  objection 
is  invalid,  it  then  returns  to  the  case  of  a  plaintiff  in  full  life; 
and  surely  in  that  case  a  court  will  not  allow  the  plaintiff  to  take 
money  from  the  hands  of  his  creditor  who  happened  to  be  a 
garnishee,  and  turn  him  round  to  a  suit  on  the  ground  of  a  debt 
which  without  a  single  inconvenience  could  be  adju>sted  by 
set-off. 

Mutuality  is  necessary  to  a  very  slight  degree.  Slipper  v. 
Stid.stonc.  (r)  Buying  the  plaintiff's  paper  before  action  brought, 
entitles  the  defendant  to  set-off.  Primer  v.  Kuhn.  (d) 

Cases  of  double  set-off,  to  which  it  is  said  there  is  nothing- 
similar,  are  nevertheless  very  numerous.  A  defendant  may- 
have  a  set-off  in  his  own  right,  and  also  in  the  right  of  his 
deceased  partner.  Slipper  v.  Stidstone.  French  v.  Andrade.  {e) 
If  he  deals  with  a  factor  who  conceals  his  principal,  and  is 
afterwards  sued  by  the  principal,  he  may  set-off  a  debt  due  by 
the  factor,  and  at  the  same  time  one  due  by  the  principal. 
Rabone  v.  Williams;  (J")  and  in  like  manner  the  assignee  of  a 

(a)  2  Burr.  825.  U)  1  Dall.  452. 

\b)  Bull.  N.  P.  179.  (<•)  6  D.iStE.  582. 

(c)  SD.isTE.  493.  (/)  7  D.i:;  E.  360. 


OF  PENNSYLVANIA. 


69 


bond  is  liable  to  two  set-ofFs,  one  by  the  original  obligor,  and      ts03. 
another  by  any  particular  defendant.  '~, 

rr.1  •  r       L  1  1  •  -1,       VvKAMOXD 

Ihe  operation  or  the  attachment  law  is  unquestionably  ^, 
favourable  to  set-off.  By  the  judgment  in  the  foreign  attach-  Bank  U.  S. 
ment,  the  plaintiff  becomes  creditor  of  the  garnishee  by  sub- 
stitution, and  all  the  legal  consequences  accordingly  attach  on 
him.  How  is  it  possible  to  sepai-ate  from  this  number  the  right 
of  set-off?  The  security  under  the  law  can  work  no  injury;  for 
it  is  a  security  to  refund;  and  all  that  can  be  demanded  under 
it  is  the  amount  received  in  virtue  of  the  attachment.  And  if 
no  plea  to  the  scire  facias  be  good  except  one  which  is  tanta- 
mount to  nulla  bo?ia,  then  it  is  impossible  for  the  garnishee  to 
plead  a  release;  a  position  which  cannot  be  maintained. 

Yeatf.s  J.  Set-offs  are  agreeable  to  reason  and  justice;  and 
in  actions  by  or  against  executors,  where  there  are  mutual  debts, 
they  are  allowed  with  gi-eat  reason.  But  this  mutuality  of  debt  is 
the  essential  circumstance  in  a  set-off;  and  was  there  any  thing 
of  the  kind  in  this  case?  The  debt  of  the  bank  was  due  to 
Broxvn^  it  owed  nothing  to  Cloxv  and  Catj  at  the  time  of  their 
death.  The  object  of  a  foreign  attachment  is  none  other  than 
to  get  the  party's  appearance  by  attaching  his  property,  and  it 
would  produce  great  confusion  to  turn  it  to  the  purpose  of 
settling  collateral  accounts  like  this.  To  allow  the  defendants 
to  pay  themselves  in  this  way,  would  be  an  injustice  to  the  other 
simple  contract  creditors  of  Clo7u  and  Cay^  whose  right  to  this 
debt  from  Broxvn  to  Clotv  and  Caij  vested  in  them  generally 
upon  the  death  of  the  latter,  and  could  not  be  diminished  by 
the  subsequent  act  of  the  defendants;  it  is  upon  this  point  that  a 
majority  of  the  court  rely  in  giving  judgment  for  the  plaintiffs. 

Smith  J.  The  ground  I  go  upon  is  that  the  money  was  fixed 
as  between  executors  and  garnishee  the  instant  the  testator 
CloiVy  surviving  partner  of  Caij^  died.  I  give  no  opinion  upon 
die  point  of  mutual  debts  and  set-off. 

Brackknkidgi:  J.  I  am  of  opinion  that  if  judgment  had 
been  rendered  against  the  gtu'nishee  before  the  death  of  Cloxv 
and  Caif^  so  as  to  have  made  it  a  debt  of  the  garnishee's  to  them, 
then  the  set-off  might  have  been  made;  but  the  instant  they 
died,  the  right  to  the  whole  of  Broiv)i's  money  vested  in  the 
creditors  generally,  who  became  thereby  entitled  to  its  distri- 
bution for  their  benefit. 

Judgment  for  Plaintiffs. 


^'1 

/W,    /'     •  '  (ASES  IN  THE  SUPREME  COURT 

1803.  «»r 


w,:ci„csd„y,    'Yi^c  President,  &c.    of  the  Delaware  and  Schuylkili,^*  ■!■ 

December  .         .  i  ^  ^i 

21st.  Canal  Navigation  (Z^r«";/i/^  San soM.  ///    y^ 

Where  a       T]vj  tj^jg  cause  the  following  case  was  stated  for  the  opinion  of 

pcnaltv  11.13     I      1      y^, 

for  itsenil  to "^  the  Court: 
insure  the 

of  the  prin-  "  '^^^  legislature  of  Pcnnsylviviia^  by  an  act  passed  on  the 
cipal  obliga-"  10th  April  1792,  entidcd  '  an  act  to  enable  the  Governor  of 

tion,  it  does   .,    ,  i  i  •  r      t  ■ 

not  destroy       the  commomvealth  to  nicorporate  a  company  tor'opcning  a 

It.  The  sub- «  canal  and  water  communication  between  the  rivers  Dela- 

scribers  to 

the  stock  of  "  ^t"?''^  and  Schuylkill^  and  for  other  purposes  therein  men-« 

the  Dela-      u  tioned,'  appointed  David  Rittenhouse  and  others,  commis- 

Avare  and  .  i  i  r  i    i      •        i  •       r 

Schuylkill  "  sioners  to  do  and  perform  the  several  duties  theremafter  men- 
canal  sign-  tt  tioned;  and  amone  other  thinc:s  directed  that  the  said  com- 
ed  an  agree-  .     .  ,        i  i  ,       , 

ment  to  pay     niissioners  should  procure  a  book  or  books,  and  therem  enter 

20U  dolls,  tor  ct  ^^  follows:  '  We  whose  names  are  hereunto  subscribed  do  pro- 
each  share  .  .  r    i 
as  the  same  "  rnise  to  pay  to  the  president  and  managers  of  the  Delaxvare 

^'Yi^Jf  J^'^      "  ^"^  Schuylkill  Canal  Navigation  the  sum  of  two  hundred 

The  act  of    "  dollars  for  every  share  of  stock  in  the  said  company,  set 

Incorpora-  u  opposite  to  our  respective  names,  in  such  manner  and  pro- 
tion  autho-  *  ^  ^  '       ,  '  .  *    , 

rizes  the       "  portions,  and  at  such  times  as  shall  be  determined  by  the  said 

catuor''  *°"  president  and  managers  in  pursuance  of  an  act  of  the  Gene- 

ments,  and    "  ral  Assembly  of  this  commonwealth,  entitled,  'An  act  to 

pcnaltv  of  5  "  '^"^t>le  the  Governor  of  this  commonwealth  to  incorporate  a 

percent,  per"  company  for  opening  a  canal    and  water    communication 

defaulters'""*'  between  the  rivers  Delaxvare  and  Schinjlklll,''  and  give  notice 

and  says,      "  of  the  time  and  place  where  the  said  book  or  books  would  be 

the  penalty    "  °P^^  ^^  receive  subscriptions  of  stock  for  the  said  company; 

shall  amount"  which  was  accordingly  done. 

paid  In'^^he       "  ^^  ^^^ ^^Y  °^  ^"  ^^^  same  year,  the  defendant 

share  shaU  "  subscribed  his  name  to  the  writing  entered  as  aforesaid  in 
Held  that  "  °"^  ^^  *^^  ^^^^  books,  for  five  shares  of  the  stock  of  the 
the  company"  said  compan}'. 

the^forfei-'^         "  ^"  ^^^  same  day  a  certain  Thomas  P.  Anthony  in  like 

ture,  and      "  manner  subscribed  his  name  for  five  shares  of  the  said  stocky 

sonally  upon  "  ^  certain  John  Stillc  for  five  shares  of  the  said  stock,  a  cer- 

the  agree-     "  tain  John  Muyhin  for  two  shares  of  the  said  stock,  a  certain 

"  Robert  Bully ^  jun.  for  two  shares  of  the  said  stock,  and  a  cer- 

"  tain  John  Holland  for  one  share  of  the  said  stock,  which  said 

"  John  Stille,  John  May  bin,  Robert  Bully  and  John  Holland 


OF  PENNSYLVANIA.  71 

*^  afterwards  severally  transferred  the  said  shares  by  them  re-      1803. 
•^  spectively  subscribed,  to  the  said  Thomas  P.  Anthony^  who     ^      , 

on  the day  of  February^  in  the  year  of  our  Lord  1794,  Company 

transferred  the  saine  together  with  the  said  five  originally         "J'- 
subscribed  by  him  to  the  said  William  Sansom;  which  said    Sansom.. 
several  transfers  were  all  made  in  the  manner  authorized  by 
the  seventh  section  of  the  act  hereinbefore  recited. 

"  The  said  William  Sansom  did  pav  one  or  more  instal- 
ments, or  they  or  some  of  them  were  paid  by  the  persons  of 
whom  he  purchased,  as  above  stated. 

"  The  whole  amount  of  the  two  hundred  dollars  subscribed 
for  each  share  has  at  different  times  been  called  for  in  instal- 
ments in  the  manner  directed  by  the  aforesaid  act. 

"  Question  I.  Is  the  said  William  Sansom  liable  to  pay  the 
amount  of  his  subscriptions,  yet  remaining  unpaid,  on  the  said 
five  shares  originally  subscribed  and  yet  held  by  him,  together 
with  the  usual  legal  interest  thereon,  or  with  the  penal  interest 
given  by  the  tenth  section  of  the  aforesaid  act?  Or  can  the 
corporation  only  forfeit  and  sell  the  said  shares,  in  the  manner 
directed  by  the  said  section  ? 

"  Question  II.  Is  the  said  William  liable  to  pay  the  amount  of 
all  the  instalments  yet  unpaid,  with  the  usual  legal  interest 
thereon,  or  with  the  said  penal  interest,  on  the  said  fifteen 
shares  transferred  to  him  as  aforesaid,  or  only  such  of  said 
instalments  as  became  due  after  the  transfer  of  the  said  shares 
to  him?  Or  can  the  corporation  only  forfeit  and  sell  the  said 
shares  in  the  manner  prescribed  by  the  said  act?" 

"  If  on  the  foregoing  statement  of  facts  the  court  shall  be  ot 
opinion  in  favour  of  the  plaintiffs,  then  judgment  to  be  entered 
for  the  plaintiffs,  the  amount  to  be  settled  by  the  parties.  If 
the  court  shall  be  of  ojiinion  in  favour  of  defendant,  then  judg- 
ment to  Ijc  entered  for  the  defendant." 

The  10th  section  of  the  act  is  in  the  following  terms,  "  That 
the  said  preside  nt  and  managers  shall  have  power  and  autho- 
rity from  time  to  time  to  fix  the  several  sums  of  money 
which  shall  l)e  paid  by  the  subscriber  or  holder  of  every 
share  of  the  stock  of  the  said  Company,  in  part  or  for  the 
sum  subscriljed,  and  the  time  wh{  n  each  and  every  dividind 
or  part  thereof  shall  be  paid,  and  the  place  where  it  shall  b< 


2  CASES  IN  THE  SUPREME  COURT 

180r».      "  rorcivtd,  and  shall  give  at  least  thirty  days  notice  In  three  of 


X'. 

Sansom. 


it 


(ji^T^i       *'  the  public  newspapers  published  in  the  city  o{  Philadclp/iia  as 
Cumpany.   "  aforesaid,  of  the  sum  or  dividend,  and  the  time  and  place  of 
"  receiving  the  same;  and  if  the  holder  of  any  share  shall  ne- 
"  gleet  to  pay  such  proportions  at  the  place  aforesaid,  for  the 
*'  space  of  sixty  days  after  the  time  so  appointed  for  paying  the 
*'  same,  evciy  such  shareholder  or  his  assignee,  shall  in  addi- 
"  tion  to  the  dividend  so  called  for  pay  after  the  rate  oi Jive  per 
*'  centum  for  evert/  month^s  delay  of  such  payment;  and  if  the 
"  same  and  the  said  additional  penalty  shall  not  be  paid  for 
such  space  of  time,  as  that  the  accumulated  penalties  shall 
become  equal  to  the  sums  before  paid  for  and  on  account  of 
*'  such  shares,  the  same  shall  h^  forfeited  to  the  said  Company, 
*'  and  7nay  and  .shtdl  be  sold  by  them  to  any  person  or  persons 
"  willing  to  purchase,  for  such  prices  as  can  be  obtained  there- 
"  for."  3  St.  Laxvs  280. 

It  was  argued  by  Morgan  and  Ingersoll  for  the  plaintiffs,  and 
by  31ilnor  and  Raxvle  for  the  defendant. 

For  the  plaintiffs.  The  remedy  of  the  Canal  Company  is  not 
confmed  to  the  forfeiture  authorized  by  the  10th  section.  3  St. 
Larvs  280.  There  is  a  positive  unconditional  promise  by  each 
orrg-inal  stockholder  to  pay  two  hundred  dollars  for  every  share 
subscribed.  It  is  a  promise  made  unconditionally  before  any 
corporation  existed.  Without  such  promise  no  plan  could  have 
been  concerted;  the  penalty  would  operate  to  distress  the -punc- 
tual and  to  release  the  defaulters.  The  canal  was  an  enterprise 
of  such  vast  magnitude,  and  so  entirely  useless  without  com- 
pletion, that  any  other  object  in  framing  the  terms  of  subscrip- 
tion, and  the  sections  of  the  act,  than  that  of  exacting  the  whole 
sum,  would  have  been  folly. 

The  forfeiture  is  given  as  a  security  to  the  general  powers 
of  the  corporation;  as  a  mode  of  compelling  under  certain  cir- 
cumstances a  more  prompt  payment  of  the  instalments,  than 
by  the  process  we  now  adopt;  as  a  means  to  enforce  without 
merq-ing-  the  original  obligation. 

The  rule  of  Pothier  in  his  treatise  on  obligations  is  the  true 
and  reasonable  rul'.%  "  When  the  penalty  has  for  its  end  to  in- 
*'  sure  performance  of  the  principal  obligation,  it  does  not  de- 
"  stroy  it."  1  Oblig.  328.  Where  a  penalty  is  intended  merely  to 


OF  PENNSYLVANIA.  73 

secure  the  enjoyment  of  a  collateral  object,  the  enjoyment  of     1803. 
the  object  is  considered  as  the  principal  intent  of  the  deed,  and     7;     ~T 
the  penalt>"  only  as  accessional.  Sloman  v.  Walter,  (a)    Equity  Compai^y 
considers  the  penalty  only  as  a  collateral  guard  to  the  agree-         v. 
ment,  which  still  remains  the  same,  and  unimpeached  by  the    2)Ansom. 
parties,  providing  a y)^/7/zer  remedy  at  law  for  the  performance. 

1  Fonbl,  141.  Loxoe  v.  Peers.  (^)  2  Poxv.  on  Contr.  136.  How- 
ard \.  Hopkins,  (c)  3  Bl.  Cow.  434.  Parks  v.  JVilson.(d)  12  Vin. 
204.  />/.  3. 

The  transferee  is  in  the  same  situation  by  this  act,  as  the 
original  subscriber;  betakes  the  share  cumonere.  3  Woodes.  87. 

2  banv,  Ab.  238.  G  Finer  463. 

For  the  defendant.  This  case  turns  upon  the  construction  of 
a  statute  by  the  common  rules ;  and  which,  inasmuch  as  it  is 
a  particular  statute,  cannot  be  construed  beyond  the  letter. 
Threadneedle  v.  Lynam.  (e)  Litt.  Rep.  247. 

Every  contract,  whatever  may  be  its  expressions,  must  be 
expounded  according  to  the  intention  of  the  parties.  The  inten- 
tion must  be  draMn  from  the  whole  instrument;  and  references 
to  and  recitals  of  other  instruments  make  them  part  of,  or  in- 
corporate them  with  tiie  principal  instrument.  2  Saund.  412. 

Where  the  penalty  is  intended  as  a  collateral  security,  the 
principal  obligation  is  not  waived;  but  this  is  not  our  case.  The 
contract  according  to  the  first  section  is  good  for  nothing  unless 
it  refers  to  the  act;  it  is  witliout  oi)ject,  without  consideration, 
without  parties;  and  in  addition  to  this,  there  is  a  clause  of  di- 
rect reference  contained  in  the  verv  body  of  the  contract.  I'iie 
error  lies  in  separating  tlie  agreement  from  the  law;  the  contract 
is  then  taken  ;is  a  distinct  engagement,  and  the  forfeiture  as  a 
distinct  penally;  but  wlien  considered  together,  the  different 
sections  of  the  law  are  like  so  many  paragrai)hs  in  a  will,  which 
courts  will  so  mould  as  to  get  at  the  intention;  and  the  forfeiture 
is  then  seen  to  be  the  very  penalty  of  the  contract,  and  tlie  only 
one. 

There  is  in  the  first  place  no  di'.crrlion  left  to  the  company 
whether  they  will  or  will  not  forfeit  the  shan  s.  Tiie  forfeiture 
^'^  peremptory;  ''  the  same  shall  be  forfeited."  It  takes  place  ipso 

(rt)  1  Bro.  tup.  418.  (c)  2  Atk.  371.  (f-)  2  M^'l-  57 

(t)  •;  Buir.  2228.  (</)  10  Mod.  .519. 

K 


74  CASKS  IN  Tin:  SUPREME  COURT 

1803.     facto  u))on  cklinqiu-nry;  tlitre  is  no  iiiqm  st,  no  puljlicallon  prc- 

Canal      paratorv  to  it.   Can  thr  legislature  liavf  intended  this  as  an  ad- 

Q:'nipany  ditional  penalty,  vhen  at  all  events  it  must  be  inflicted?   Is  it 

t,     ^'  alternative  when  there  is  no  choice?  It  beino- the  duty  of  the 

Sansom.  . ,        ,  ,  r     r •      ?  ••I 

corporation  to  consider  these  shares  as  lorieited,  an  omission  by 

them  cannot  alter  the  case  ol  the  subscribers,  who  are  by  the 
tenth  section  completely  discharged.  A  remedj'  given  by  statute 
must  be  pursued,  particularly  by  corporations,  the  very  creatures 
of  statute.  K'nk  \.  Noxvill.  (a)  Rex  v.  Croke.  (b)  The  applica- 
tion of  s/ia/l  to  the  forfeiture,  and  of  shall  and  may  to  the  sale, 
very  clearly  shews  the  intention  of  the  legislature. 

The  forfeiture  is  not  intended  to  enforce  payment^hwt  it  is  to 
destrov  his  right  to  hold  the  share,  and  therefore  discharges  his 
obligation.  It  is  in  the  nature  of  a  liquidated  satisfaction^ 
vhich  cannot  be  exceeded  or  waived.  Rolfe  v.  Patterson,  (c) 
1  Fonhl.  142. 

The  act  says  that  Sansom  is  not  a  stockholder;  the  corporation 
say  he  is;  and  the  court  would  repeal  this  section  of  the  charter^ 
if  they  should  coincide  with  the  corporation. 

[Smith  J.  If  the  penalty  goes  to  themselves,  cannot  they 
remit  it?] 

We  conceive  not.  They  have  no  power  by  a  bylaw  to  ex- 
cuse what  by  the  articles  of  their  constitution  it  is  compul- 
sory upon  them  to  exact.  But  if  he  is  a  member  of  the  corpora- 
tion, their  general  authority  does  not  extend  to  suits  against 
their  own  members  as  such.  They  must  have  the  power 
spcciallv  granted. 

As  to  transferee^  he  has  not  promised  either  expressly  or 
impliedly.  By  the  seventh  section  he  takes  the  shares  subject  to 
paijments  due  and  to  groxv  due.  and  nothing  further. 

In  reply,  the  obligation  of  the  transferee  was  given  up.  But 
the  power  of  suing  its  own  members  was  said  to  be  incidental 
to  every  corporation;  and  moreover  that  at  the  time  of  making 
the  subscription,  there  was  no  corporation,  but  individuals  to 
whom  the  corporation  succeeded. 

The  question  of  penal  interest  was  scarcely  touched  upon  in 
the  argument,  as  it  seemed  to  be  acknowledged  that  it  was  a 
mere  prelude  to  forfeiture,  and  could  not  be  exacted  under  the 
bond. 

(<i)  1  Z).  s^  £.  1  i 8.  {b)  Coixp.  26.  (c)  6  £ro.  P.  C.  4^0, 


OF  PEXXSYLVANIA.  75 

The  opinion  of  the  court  was  delivtred  by  1803. 

Yeates  J.  The  court  have  no  difficulty  in  this  case.  The     Canal 

terms  of  subscription  must  no  doubt  be  taken  with  the  act  at  Company 

larjre,  but  there  is  nothing  in  the  act  to  annul  the  unconditional    ^    ^'" 

7  -jiiii-r  •         T-u  Sansom. 

and  express  promise  demanded  by  the  nrst  section.    1  he  power 

given  to  the  companvbythe  tenth  section  is  merely  discretionary; 

the  penalty  is  in  favour  of  the  company,  it  is  intended  to  enforce 

the  payment  of  the  subscription,  and  they  may  waive  it  as  they 

have  done  in  this  case.   As  to  the  original  shares  then,  there 

must  be  judgment  for  the  plaintiffs  fur  the  sum  remaining  due, 

with  interest  at  six  per  cent. 

The  shares  which  the  defendant  holds  as  transferee  stand  on 

a  different  ground;  as  to  them  he  has  given  no  express  promise 

to  pav,  and  the  act  has  made  no  other  provision  than  that  the 

shares  should  be  aiibject  to  the  payments. 

SiiiPPEN  C.  J.  was  not  present  at  the  argument. 


Johnson  against  Chaff  ant.  Saturday, 

},^    78  December 

■^^il«(  T      J.  24th. 

In  Lrror. 

THIS  was  a  writ  of  error  to  the  Common  Pleas  of  Cheste}-;^^^^^'^^'^  'san 
and  the  error  assigned  was  that  the  declaration,  which  washy'aum-nies 

in  dtbt^  did  not  state  the  obligation  to  be  in  any  certain  sum,^^'"^^'  t<» 

^.      .  anieml.coui^t 

but  left  a  blank  tor  it.  ^vill  jrive 

fun  \'  t  >     f  f  k 

Ross  for  the  defendant  in  error  moved  for  leave  to  amend  ;ui,en(l  af- 
upon  the  ground  of  an  agreement  between  the  attornies  below  ^^r  error 
before  error  brought;  of  which  he  produced  a  certificate  from  ^nd  witl'iovi!; 
them.  <:osts. 

JlfKran  (attorney  general).  The  agreement  was  never  com- 
municated to  ine,  nor  is  it  on  record.  The  plaintilf  below  should 
have  seen  to  the  amendment;  and  if  leave  is  given  now  it  ought 
to  be  upon  payment  of  costs.  Rees  v.  iMorifan.  Qi)  Pvtric  v. 
FlanJiay.  (Ji) 

Per  Curiam.  You  arc  bound  by  the  agreement  of  the  attor- 
nies below.  We  do  not  proceed  upon  tin;  common  ground  of 
amendment,  but  upon  the  agreement.  The  amendment  mav 
therefore  be  made,  and  ivithoiit  costs, 

(a)  3  I),  b*  F..  ;',49.  (j>) :;  d.  {j*  j^;.  r,-;? 


CASES  IN  THE  SUPREME  COURT 


1803. 


, r      !  lb  '761 

neceScr  Vanlear  agaiust  Vanlear.  -:^| 

26lh.  " 

The  record  T^HIS  was  an  appeal  from  the  Circuit  Court  of  Chester 

of  tlie  pro-     X  county.  The  record  was  filed  in  the  office  of  the  Prothono- 

oran"appeait^iy  ^^  ^^^^^  court  before  ten  o'clock  in  the  morning  of  the  rth 

{romi\\xi  cw- St'ptevibcr  1803,  which  was  the  fust  day  of  September  term, 

wii'icfXlaw  the  first  term  next  after  the  decision  of  the  circuit  court  from 

is  directed  to  ^vhich  the  appeal  was  entered, 
be   filed    he- 
fore  the  next 

term,  is  in       Jt  was  now  called  on  for  argument,  when  the  appellee  object- 

filTd  bcforr  ed  that  the  appeal  was  not  in  court,  as  the  record  of  the  pro- 

the  court      ccedings  was  not  filed  within  the  time  limited  by  the  act  of 

fil-st  day"of^^  Assembl)-,  which  is  as  follows:    "  That  if  either  of  the  parties 

the  next        tt  g^c.  shall  be  dissatisfied  with  the  judgment  or  decision  of  the 

^  "^'  "  said  Circuit  Courts  on  any  demurrer,  special  verdict,  case  sta- 

"  ted  &c.  that  then  and  in  such  case  the  party  so  dissatisfied 

"  with  the  judgment  of  the  said  Circuit  Court,  and  appealing 

"  from  the  same  to  the  said  Supreme  Court,  shall  obtain  from 

"  the  clerk  of  the  Circuit  Court  of  the  respective  county  a  re- 

"  cord  of  all  the  proceedings,  and  file  the  same  with  the  pro- 

"  thonotary  of  the  Supreme  Court  before  the  next  tcr?ii,  and  on 

"  failure  thereof,  judgment  shall  be  confirmed  and  execution 

"  awarded  in  the  same  manner  as  if  such  appeal  had  not  been 

"  made."  March  20th,  1799.  4  St.  Laws  360. 

The  question  was  submitted  without  argument.  Hoss  for 
plaintiff.  Hemphill  for  defendant. 

Per  Curiam.  The  record  of  the  proceedings  having  been 
filed  with  the  prothonotary  before  the  meeting  of  the  court  on 
the  first  day  of  the  next  term,  we  think  it  within  the  limit  in- 
tended by  the  act  of  Assemblv. 


OF  PENNSYLVANIA.  77 

1803. 

Miles  against  M'CuLLOUGH.  December 

29th. 

THE  defendant  while  attending  in  this  Court,  upon  an  ap-  A  party 
peal  from  the  settlement  of  his  accounts,  as  administrator,  }^''^*^", 
»  '  '  ing  an  appeal 

in  the  Orphan's  Court  of  Lancaster  county,  was  served  with  a  from  the 

summons  at  the  suit  of  the  plaintiff;  and  Hopkinson  now  iTf^oved  ^|^"[^^* 

to  set  aside  the  service  upon  the  ground  of  privilege.  county  to 

this  court  is 
privileged 

S.  Levy  contended  that  the  party  was  privileged  from  arrests  fiom  a  sum- 
alone.  But  "'°"'- 

Per  Curiam.  It  has  been  repeatedly  ruled  that  he  is  equally 
privileged  from  the  service  of  a  summons.  Therefore  let  the 
service  be  set  aside. 


--     rhe  Commonwealth  r/p"«/;/^;  Douglass  and  others     Saturday, 

1    im1  t  p     1       t^  •  Uccembci- 

**'^'"1  Inspectors  ot  the  Jrnson.  sist. 

TN  this  case  upon  the  motion  of  Hojikinson^  founded  upon  the  An  act  of 
-*•  following  affidavits,  a  rule  was  granted  upon  the  defendants  ^.^^^^"['ij^/ 
to  shew  cause  why  an  information  in  the  nature  of  a  quo  ri-r/r- pointment  of 
ranto  should  not  be  filed  against  them  to  inquire  by  what  autho-  Jhc^pri^on  °* 
rity  they  exercised  the  oftice  of  inspectors  of  the  prison  of  the  in  ibe  mayor 
city  and  county  of  PJdladclphia,  "^^^.^^l  "J^" 

the  city,  and 
"  yohnClement  Stacker^  of  the  city  oi  Philadelphia^  Esq.  being  of  tUeVoun- 
"  duly  sworn,  doth  depose  and  say,  that  being  one  of  the  alder-  ^V  of  P/;;/a- 
"  men  of  the  said  city,  on  the  5lh  day  oi  November  last,  (1803)  |/i,lL.cts'it'io 

"  he  called  on  Mattluiv  Laxvler  Esq.  mayor  of  the  said  city, ^'''  'xerciscd 
iL         I  •  •       I      i-  1  •  1  •  I  '  I  I         1        '         "  _<in  a  certain 

and  mquired  ol   him  at  what  time  and  place  the  election  of  aay.   An  ap- 

"  inspectors  of  the  prison  of  the  city  and  county  of  PAz7«(/t'/-P"'"tnieiit 

"/»/«■«  would  be  held,  the  appointment  of  the  time  and  place  of,ia,i,ii.stiac 

"  holding  the  said  election  being  vested  in  the  mavor,  and  this  "'•"'"<-'■ 

alter  a  refu- 
sal by  the 
ma)nr  to  make  known  to  certain  aiciermcn  and  justices  the  lioiir  and  place  at  whirii  such 
appointment  would  be  m.ide,  is  not  hucIi  an  exercise  of  tlie  mayor's  discretion,  as  ilie  law 
will  waiTant;  and  the  court  will  ^ive  leave  to  file  an  information  in  the  nature  of  a  quo 
^•tirranni,  aj;ainst  tlu;  inspectors  s>>  appointed  f)iie  \iho  has  an  autli'irity  to  aj)poii\t  to  a 
public  office,  caimot  appoint  liim«iclf. 


78  CASES  IN  THE  SUPREME  COURT 

1803.  ''  deponent  believing  that  as  an  alderman  of  the  said  city,  he 
Amnion-  "  ^^'''^'  ^  \cgA  right  to  participate  in  the  said  election.  To  the 
wealth  "  inquiry  made  as  aforesaid  by  this  deponent,  the  said  mayor 
V.  "  replied,  '  The  law  points  out  the  time.'  This  deponent  said, 
Douglass,  u  t  j  believe  it  is  on  Mo7idaij  next.'  The  mayor  replied  '  Yes.' 
"  The  deponent  then  inquired  ot"  the  said  mayor  '  at  what  place 
"  do  you  hold  the  election  ?'  To  which  the  mayor  answered, 
"  that  he  had  not  made  up  his  mind.  This  deponent  further 
*'  inquired  *  At  what  hour  do  you  intend  to  open  the  election  ?' 
"  To  which  the  mayor  again  replied  '  I  have  not  as  yet  made  up 
"  my  mind  as  to  the  time,  but  I  shall  summon  as  many  as  the 
"  law  directs.'  This  deponent  then  addressed  the  mayor  and 
"  said:  '  You  will  have  no  objection  to  let  me  know  the  time 
"  and  place  of  the  said  election,  if  I  shall  call  on  you  on 
"  Mondarj  morning.'  The  mayor  replied  "•  I  shall  summon  as 
"  many  as  the  law  directs,  but  I  shall  not  let  you  know.'  This 
*•'  deponent  observed  that  he  hoped  they  had  the  same  thing  in 
"  view,  the  choice  of  good  men.  The  mayor  said  he  hoped  so, 
"  but  that  he  would  not  let  this  deponent  know  when  it  was  to 
"•'  take  place.  The  deponent  replied  that  he  thought  it  was  hard 
"  to  be  debarred  of  his  right  to  know  the  time  and  place  of  the 
"  election  and  to  participate  in  it.  The  mayor  again  replied, 
*•'  '  that  I  might  think  as  I  pleased,  but  that  he  should  sum- 
"  mon  whom  he  pleased  and  would  not  let  me  know  when  or 
"  where.'   That  John  Douglass  Esq.  was  present  during  the 


"  conversation." 


"  Ebenezer  Ferguson  of  the  district  of  Southwark  in  the 
"  county  of  Philadelphia^  being  duly  sworn,  doth  depose  and 
"  say,  that  this  deponent,  being  a  justice  of  the  peace  in  and 
"  for  the  county  of  Philadelphia^  on  Saturday  the  5th  day  of 
"  November  last,  (1803)  in  company  with  several  of  the  alder- 
•'  men  of  the  city  of  Philadelphia,  and  justices  of  the  peace  of 
"  the  said  county,  waited  upon  Matthexv  Laxvler  Esq.  mayor  of 
"  the  said  city,  to  be  informed  of  the  time  and  place  at  which 
"  the  election  of  the  inspectors  of  the  prison  of  the  city  and 
"  county  of  Philadelphia  would  be  held,  that  they  might  parti- 
"  cipate  in  said  election.  That  upon  making  the  inquiry  of  the 
"  said  mayor,  he  declined  to  give  the  information  desired. 
"  That  on  Monday  the  7th  day  of  the  said  month  of  Novembery 
"  the  deponent,  in  company  with  a  great  number  of  the  said 


OF  PENNSYLVANIA.  79 

«  aldennen  and  justices,  to  wit,  (six  aldermen  and  eight  jus-      isos. 

*'  tices)  waited  upon  the  said  mayor  at  his  office,  a  few  minutes  „  "~" 

*'  after  nine  o'clock  in  the  morning,  it  being  the  da}'  appointed     -vvealth 

*'  by  law  for  holding  the    said  election  of  inspectors  of  the         -v. 

"  prison,  and  inquired  of  the  said  mayor  to  be  informed  of  the  Douglass. 

''  time  and  place  of  holding  the  said  election,  as  this  deponent 

''  together   with  the   said   aldermen   and  justices   wished   to 

"  participate  in  the  choice  of  the  said  inspectors.   The  said 

■•'  mayor  replied  that  the  appointment  of  inspectors  was  already 

*•'  made." 

The  act  of  Assembly  wliich  first  regulates  the  appointment  of 
inspectors,  enacts,  That  it  shall  and  may  be  lawful  for  the  mayor 
and  two  aldennen  of  the  city  of  Philadelphia^  and  two  of  the 
justices  of  the  peace  of  the  county  of  Philadelphia  "  on  the 
"  first  Monday  in  May  next  to  appoint  twelve  inspectors,  six  of 
*'  whom  shall  be  in  office  until  the  first  Monday  in  November 
"  next,  and  six  until  the  first  Monday  in  May  following^  and  so 
"  from  time  to  time  six  inspectors  shall  be  appointed  in  manner 
"  aforesaid,  on  the  first  Mondays  in  May  and  November  follow- 
^'-  ing."  April  5th,  1790.  2  St.  Laws  810.  This  provision  is 
repeated  in  a  supplement  to  the  Penal  Lazvs  of  this  state  passed 
23d  September  1791.  3  St.  Laxvs  124. 

The  rule  was  returnable  on  Monday  the  19th  inst.  when 
Dicker-son  on  behalf  of  the  defendants  appeared  to  shew  cause; 
Hopkinson  and  Ingersoll  for  the  prosecutors. 

The  commission  of  the  defendants  was  then  produced  signed 
\yy  M.  Lawlcr^  mayor,  John  Douglass  znAJohn Barker^  alder- 
men, F.  Wolbert  and  J.  ATcs-.y/f-r,  justices  of  the  county;  and  it 
was  then  in  proof  that  the  usage  had  been  to  summon  nine  or 
eleven  magistrates,  not  less  than  four  from  the  county  and  five 
from  the  citv,  the  mayor  always  naming  the  individuals;  that 
they  generally  met  in  the  afternoon,  and  uniformly  at  the 
mayor's  office;  that  the  present  mayor  in  die  appointment  pre- 
vious to  the  last  had  followed  this  usage,  in  consequence  of 
which  so  many  magistrates  attended  of  sentiments  hostile  to 
his  own,  that  he  was  out-voted,  and  had  joined  in  commission- 
ing  officers  he  did  not  approve;  and  that  to  guard  against  a 
repetition  of  this  act,  hf  summoned  in  this  instanre  hut  tour 


80  CASES  IN  THE  SUPREME  COURT 

1 803.      magistrates,  with  whom  he  made  the  appointment  at  a  tavern  iu 

"TT"  the  citv,  before  nine  o'cloek  in  the  mornine;;  one  of  the  alder- 

Coninion-  •  '  . 

wealth     nicn  present  being  appointed  one  of  the  inspectors,  and  Joinhig' 

V.         in  his  orvii  commission. 
Douglass. 

Upon  these  facts  and  the  act  of  assembly,  Hopkinson  argued, 
that  as  the  law  docs  not  designate  any  two  justices  or  aldermen 
who  are  to  hold  the  election,  it  does  not  give  an  authority  to  the 
mavor  to  select  any  two;  that  therefore,  by  a  necessary  infe- 
rence, the  power  of  electing  is  vested  in  the  whole  body  of  the 
magistrates  of  the  city  and  county;  all  and  each  having  an  equal 
right  to  participate  in  it,  although  it  may  be  done  by  anij  txvo. 
All  therefore  who  attended  and  claimed  the  right,  were  illegally 
deprived  of  it  by  the  refusal  of  the  mayor  to  inform  them  of 
the  time  and  place  of  holding  the  election.  The  legislature 
provides  for  an  emergency,  by  requiring  the  assent  of  only  a 
few,  as  there  are  circumstances  under  which  only  a  few  can  be 
assembled;  but  beyond  question,  for  the  sake  of  the  peniten- 
tiary institution,  it  intended  to  reserve  the  benefit  which  might 
arise  from  the  counsels  of  the  whole  or  a  large  portion,  when- 
ever the  whole  or  the  portion  chose  to  advance  their  opinions, 
and  legally  demanded  an  opportunity  to  express  them.  If  the 
contrary  position  be  true,  there  is  more  than  one  consequence 
flowing  from  these  provisions  of  the  law  totally  irreconcileable 
with  policy  or  common  sense.  In  the  first  place,  the  opinion  of 
nine  tenths  of  the  city  and  county  magistrates  may  be  rendered 
of  no  eft'ect  by  the  opposition  of  one  tenth.  This  is  contrary  to 
the  spirit  of  our  laws  in  every  other  instance.  In  the  next 
place,  the  mayor  alone  might  as  well  make  the  whole  appoint- 
ment. For  if  he  may  summon  to  his  assistance  those  only  Avho 
suit  him,  and  then  clandestinely  execute  the  law,  it  is  clear  that 
none  but  those  of  his  own  sentiment  will  receive  an  invitation^ 
and  therefore  that  his  own  candidates  will  always  be  appointed. 
This  is  contrary  to  the  spirit  of  the  particular  law  in  question; 
for  it  is  evident  from  the  selection  of  at  least  two  magistrates 
from  the  county  and  as  many  from  the  city,  that  the  object  of 
the  law  was  to  procure  an  expression  of  the  public  will  from 
each  of  these  districts,  because  it  is  to  them  that  the  regulations 
of  the  prison  have  a  principal  relation. 

Whetherihe  mayor  is  an  essential  member  of  the  appointing 
body,  it  is  not  material  to  inquire,  as  this  is  not  a  case  in  which 


OF  PENNSYLVANIA.  81 


o. 


an  appointment  has  been  made  without  his   concurrence   or      igO 
against  his  will;  our  present  point  is  that  he  has  no  discretion  to  ~Z  ' 

reject  the  vote  of  any  alderman  or  justice  who  presents  himself    wealth 
for  the  purpose  recited  in  th.-  law;  for  if  he  has  the  discretion,  he 
may  usurp  the  whole  power.  Douglass 

Let  it  be  granted  however  for  the  sake  of  argument  that  the 
mayor  has  this  discretion;  we  then  say  that  he  has  exercised  it 
in  a  manner  so  partial^  oppressive  and  arbitrary^  as  calls  for  the 
exercise  of  the  constitutiontd  powers  of  the  supreme  court  in 
this  behalf. 

The  first  circumstance  of  this  kind  in  the  case  is,  that  it  was 
not  a  Sare  neglect  to  summon  the  officers,  but  a  deliberate  de- 
nial of  their  right  upon  a  claim  made  by  them  to  exercise  it. 
Another  is  the  desertion  of  the  ordinary />/«C6' of  meeting.  The 
mavor's  office  as  well  as  the  most  natural  was  the  most  usual 
scene  of  these  appointments;  and  in  changing  it  for  an  inn  upon 
an  occasion  of  this  nature,  it  is  certain  that  the  object  was  to  dis- 
appoint those  who  in  a  reliance  upon  usage  should  resort  to  the 
accustomed  place.  A  third  circumstance  is  the  hour.  There  is 
a  want  of  confidence  in  the  measure  betrayed  by  the  parties 
themselves  in  the  selection  of  the  time.  If  the  mayor  has  the 
discretion  which  is  contended  for,  this  is  not  the  way  in  which 
he  must  exercise  it  to  secure  the  protection  of  the  law;  it  is  a 
reasonable  discretion  alone  that  is  defended  by  this  court;  and 
there  is  not  abetter  ground  for  defeating  a  xxxixmiest  usurpation 
of  right,  than  th^-re  is  for  defeating  a  right  thus  oppressively, 
partiallv,  and  unjustly  exercised.  The  King  v.  Young  and 
Pitts,  {ci) 

The  common  defence  of  a  discretion  thus  used  is  ignorance; 
but  it  cannot  be  the  plea  of  the  present  mayor.  He  was  ac- 
quainted with  the  usage,  as  in  one  instance  at  least  he  pursued, 
it.  He  was  moreover  advised  to  adhere  to  it  by  the  constitu- 
tional counsel  of  the  city;  !nit  the  advice  was  rejected,  although 
the  consequence  was  that  'Jolm  Dong'ass  appointed  and  com- 
missioned himself,  (h)  The  spirit  of  the  proceeding  infects  the 
whole  appointment;  and  an  information  i.s  the  proper  remedy. 

(«)  1  Burr.  556.  ^rt9. 

(/»)  It  ap|K-are<l  tliat  the  recorder  of  the  rity  ha(l  advised  tlic  mayor  not  tu 
i)ror«:i-d  to  tlic  appointment  a.*  Iio  did;  but  liis  advice  was  rounded  on  Uiff 
:iicxp"dicncy  of  tlic  measure  i-i'li'-'-  tlian  on  any  opinion  lie  had  f'jrni'jd  of  i(t 
lUcfjalitv 

Vol.  I.  I^ 


32  CASES  IN  THE  SUPREME  COURT 

180J.  Dickcrso)i  argued,  that  the  law  provided  for  the  oppo'intmcnl 

Coniinon-  ^^^  "^^  ^^^  ^^^  election  of  inspectors.   An  appointment  is  not 
vcalth     necessarily  an  election;  in  the  present  case  it  bears  no  resem- 
^'-         blance  to  an  election;  and  the  law  has  carefully  avoided  the  use 
IJovglass.qJ.-j^]^j^  latter  term.  Had  the  legislature  intended  that  the  inspec- 
tors should  be  placed  in  their  offices  by  an  election,  the  place, 
as  well  as  the  time,  and  the  manner  of  conducting  it,  would 
have  been  pointed  out,  as  in  the  case  of  other  elections. 

As  the  city  and  county  are  both  interested,  so  they  both 
ought  to  have  some  influence  in  the  appointment  of  inspectors. 
To  have  given  this  power  without  control  to  the  mayor,  would 
have  been  doing  injustice  to  the  county.  The  only  check,  how- 
ever, which  the  legislature  thought  proper  to  place  upon  the 
power  of  the  mayor  was,  that  he  should  not  appoint  inspectors 
without  the  concurrence  of  at  least  two  of  the  justices  of  the 
peace  of  the  county,  and  two  aldermen  of  the  city;  and  with 
their  concurrence  he  could  undoubtedly  make  the  appointment, 
even  if  all  the  other  aldermen  of  the  city,  and  all  the  other  jus- 
tices of  the  county  should  oppose  him. 

It  is  said,  that  the  mayor  by  summoning  but  two  aldermen 
and  two  justices  may  always  have  the  appointment  made  ex- 
actly to  his  own  liking.  But  how  did  the  conduct  of  the  former 
mayors  vary  from  this  rule?  It  is  true,  they  generally  invited 
four  justices  and  five  aldermen  to  attend  the  appointments;  but 
they  took  care  to  invite  such  only  as  would  agree  with  them  in 
the  choice.  There  is  no  instance  where  one  of  those  mayors  has 
V2erg'ed\i\s  own  vote  by  inviting  those  who  would  vote  against 
him;  nor  indeed  was  there  any  obligation  upon  them  to  do  so. 
Those  mayors  hud  as  full  and  absolute  control  over  the  appoint- 
ments with  five  aldermen  and  four  justices,  as  the  present  mayor 
had  with  two  aldermen  and  two  justices;  the  principle  is  pre- 
cisely the  same  in  the  one  cage  as  in  the  other.  The  law  is  ex- 
press, that  the  mayor,  two  aldermen  and  two  justices  shall  have 
the  power  to  appoint  8cc. 

It  is  said  that  the  mayor,  if  he  had  the  right  of  selection, 
has  exercised  it  in  a  partial^  oppressive  and  arbitrarij  manner; 
and  that  although  he  might  not  be  bound  to  give  jiotice  &c.  to 
all  the  aldermen  and  justices,  yet  he  was  bound  to  give  them 
that  information  when  they  applied  for  it;  that  they  were  enti- 
tled to  this  information  as  a  matter  of  right. 


OF  PENNSYLVANIA.  83 

These  questions  are  not  fairly  before  the  court.    If  the  may-      1803. 

or  has  deprived  these  aldermen  and  justices  of  any  of  tlieirT! 

'  ,  J  J  Common- 

rights,  they  have  their  remed\-  against  him;  they  may  bring      wealth 

their  actions,  or  proceed  against  him  as  they  please;  but  it  is         ^'• 

idle  to  proceed  against  the  inspectors  for  injuries  the^'  have  A-'Ovglass. 

sustained  from  the  mayor.  It  is  sufficient  for  the  inspectors  that 

they  hold  a  commission  executed  by  the  mayor,  two  aldermen^ 

and  two  justices;  they  were  bound  to  serve  or  be  subject  to  a 

penalty;  nor  was  it  their  business  to  inquire  whether  the  mayor 

had  deprived  any  person  of  his  right  to  vote;  these  exceptions 

therefore  to  the  conduct  of  the  mayor  ought  not  to  have  any 

Influence  in  deciding  the  question  before  the  court. 

It  is  said  that  one  of  the  inspectors  is  one  of  the  appointing 
magistrates.  But  it  does  not  follow  from  this  that  the  appoint- 
ment is  bad.  Even  in  the  case  of  an  election  to  a  corporation 
office,  it  seems  fairly  inferible  from  the  Km^  v.  Ma/den  (a) 
that  it  is  no  objection  to  the  officer  that  he  presided  at  his  own 
election,  and  was  sworn  in  before  himself.  But  the  present  case 
is  merely  an  appointment;  and  it  rests  with  the  gentlemen  in  fa- 
vour of  the  rule  to  shew  that  because  a  person  is  vested  with 
the  right  to  appoint,  he  is  precluded  from  exercising  that  right 
in  his  own  favour.  If  however  the  court  should  be  of  opinion 
that  he  could  not  concur  in  his  own  appointment  and  by  that 
concurrence  make  it  valid,  it  will  not  be  denied  that  his  concur- 
rence in  the  appointment  of  others  is  good;  his  case  therefore 
cannot  in  the  slightest  degree  affect  the  appointment  of  the 
others. 

The  law  does  not  fix  the  hour  of  the  day  nor  the  place  of 
making  the  appointment;  and  there  has  not  been  sufficient  time 
since  the  passing  of  the  law  to  establish  any  rule  upon  the  sub- 
ject by  custom.  Nor  indeed  does  it  appear  that  there  was  any 
necessity  for  a  meeting  at  all,  if  the  concurrence  of  the  mayor, 
two  aldermen,  and  two  justices,  could  have  been  obtained  on 
the  proper  day  without.  The  mayor  has  exercised  his  discre- 
tion upon  thesf  points,  according  to  the  spirit  of  the  law.  It  is 
sufficient  that  the  a|)pointment  was  made  on  the  proper  day,  and 
by  the  officers  required  by  law  to  make  the  same. 

In^crsoll  in  reply  said  that  the  question  was  not  so  mucli 
whether  the  mayor  had  a  discretion,  as  whether  he  had  exci- 

(n)  4  Burr.  2130. 


84  CASES  IN  THE  SUPRFME  COURT 

1803.  cised  it  in  a  fail-  and  reasonable  niannt  r,  without  which  the  ap- 
Conuiioi~P*^'"^'"*^'"^  could  not  he  vahd.  That  whether  it  was  called  an 

weulili      a|)poiiitment  or  aw  election  was  immaterial;  for  that  where  an 

'''•         authority  may  be  exercised  by  several,  equal  opportunity  of 

Douglass,  j^jj^g.  j^.  g|,Q^,ij  [3^  given  to  all;  and  where  this  opportunity  is 

oppressivehi  withheld,  it  corrupts  the  whole  proceeding.  That 
the  case  of  the  Kiiigx.  Maiden  did  not  apply,  as  the  plaintiff  did 
not  elect  himself;  but  the  only  point  there  decided  was  that  he 
was  not  duly  sworn  in. 

The  opinion  of  the  court  was  delivered  by 

Yeatf.s  J.  (f/)  The  words  of  the  17th  sec.  of  the  act  of  23d 
Sept.  1 79\  are  that  "•  it  shall  and  may  be  lawful  for  the  mayor  and 
"  two  aldermen  of  the  city  of  Philadelphia  and  two  justices  of 
"  the  peace  for  the  county  of  Philadelphia  to  appoint  inspectors 
"  of  the  prison  of  the  city  and  county  of  Philadelphia  on  the  1st 
"  Mondaijs  of  May  and  November  in  every  year,  and  on  any 
"  other  days  when  vacancies  shall  happen  in  the  said  office  by 
"  death  resignation  or  otherwise."  It  appears  to  a  mujoriiy  of 
the  court,  that  the  legislature  intended  to  vest  in  the  mayor  a 
certain  legal  discretion,  which  should  be  exercised  in  a  lair, 
equal,  and  reasonable  manner.  The  question  is  not,  whether  the 
mayor  is  bound  to  give  formal  notice  to  all  the  aldermen  ot  the 
city,  and  justices  of  the  peace  of  the  county,  when  and  where 
the  appointment  shall  be  proceeded  upon:  but  whether  when  he 
has  been  called  upon  by  persons  of  that  description  whom  the 
law  vests  w  ith  a  power  of  appointment,  and  who  are  desirous 
of  exercising  that  right,  he  can  legally  refuse  to  gi\  e  them  in- 
formation of  the  place  and  hour  of  appointment,  and  preclude 
them  from  giving  their  sentiments  upon  the  subject.  We  are  of 
opinion  that  he  is  not  justified  by  law  in  this  refusal;  and  thus 
proceeding  to  a  nomination  at  an  unusual  hour  and  place  is  not 
such  an  exercise  of  his  discretion  as  the  law  will  warrant;  be- 
cause this  would  be  in  effect  an  assumption  of  the  whole  power 
In  the  mavor,  which  cannot  be  collected  from  the  words  of  the 
law.  One  having  a  discretionary  authority  to  appoint  a  fit  per- 
son to  a  public  office  appointing  himself,  seems  a  solecism  in 
terms;  and  it  cannot  be  deemed  the  fulfilment  of  his  duty.  We 
periectly  concur  with  Mr.  Recorder  that  whatever  right  the 

(a)  Shi  ppen  C  J.  was  absent,  from  indisposition. 


OF  PENNSYLVANIA.  85 

mayor  had  in  this  appointment,  it  was  improper  to  exercise  it  in      j  gos. 
the  manner  he  has  done;  and  ilierefore  think  good  and  legal  TT 
grounds  have  been  shewn  to  file  the  information  prayed  for  by     wealth 
the  relators,  in  the  nature  of  a  quo  rvarranto.  v. 

DoVGLAss. 

Brackenridge  J.  I  concur  in  this  opinion  only  so  far  as 
touches  the  case  of  Jolvi  Douglass. 

Rule  absolute. 


'*>    &5  ,  .  Saturday, 

n    Hi  KEtiNEDY   a^ai?7St  Gregory.  December 

-  "^  31st. 

.-  _  ^  III  an  action 

"T^IIIS  cause  was  tsied  before  Smith  and  Brackenridge,  jus- of  slander 

-■-  tices,  at  Nisi  Prius  in  June  1803.   It  was  an  action  on  the"''%^.^''f  , 
'  -^  _       proof  IS  that 

case  for  a  slander  uttered  by  the  defendant  of  and  concerning  the  defend- 

the  plaintiff  in  his  business  of  school-master,  "  that  he  loved  li-f"* '"  '^^y 
'  '  to  a  question 

''quor,"  and  "that  he  was  given  to  drink," /x^r  quodhc  lost  hisimplioatinc: 

scholars.  The  pleas  were  not  p-iii/ti/  and  in  tification.  The  evi-    "^  P  :»'"|»" 
'  .  -'J  answen-d  ci- 

dence  of  the  slandir  was  the  testimonv  ot  one  Samiit/  BrerV'ter^^hev  "  It  is 
that  on  his  askincr  the  defendant  if  Kenneclu  was  given  to  drink,  *°  ^^.'l 

o  u  o  ■>  say  It  IS  so," 

he   answered   either  "it  is  so,"  or  '■'■they  say  it  is  so."  The  tlic  defend- 

counsel  of  the  defendant  then  offered  a  witness  to  prove,  in  mi-  fn  e'^dciic'e^ 

tigatirm  of  damages,  that  before  the  publication  of  the  words ''"  mitigatiou 

laid  in  the  declaration,  he  had  told  Gregory  that  the  plaintiff'tvas^l^^l^^^^^^^^ 

nvcn  to  drink.  This  evidence  was  objected  to,  and  the  judges '"''l  '''"i 

were  divided  in  opinion  upon  its  admissibility.  Smith  J.  thought  il^'^!*,!  j^  ^'^' 

it  was  inadmissible  upon  the  issues  then  trying,  but  was  willing  *'t<^'"'^  ^I'so 

that  the  defendant  should  have  tiie  benefit  of  it,  reserving  tlic\^.i',p„  ti,e 

point.  Brackenridge  J.  thought  it  admissible  in  mitigation  of  ^'iinder  is 

damages;  but  he  asked  the  defendant's  counsel  whether,  from  ,„,i'r,.(;,,.. 

the  case  which  the  plaintid'  liad  made  to  the  jurv,  thev  thought  <;"<'■. 'I'c  ^Ip- 
.1     •       ..      ^  1    •  1      ,-  •       'r-i  -1  '  '       1  1    fendant  may 

tneir  client  stood  ni  need  of  it.    1  he  evidence  was  not  heard.  •,„  niiti^ratiori 

The  court  then  charged  the  jurv  that  the  words  did  not  appear  "'^''=""='K^«:!* 

to  have  been  spoken   maliriouslv,  i)ut  to  have  been  used  up(mii,p  slander 

.m  examination  of  the  plaintiff's  character,  in  which  the  com- V^  eommu- 

,      „,,        .  ,  ,,  ,  .•       ,•      "icated  to 

munity  was  interested.    1  \\v  jury  however  lound  a  verdict  lor  j,im   by  a 
'he  plaintiff,  one  hundred  doliars  damages.  V'";''  I"''*-"" 

"  Vide  Morm 

V   Duane. 


t'O  t  ASLS  IN  THE  SUPREME  COURT 

1 B03.  Jjij^'crso//  obtained  a  rule  to  show  cause  why  there  should  not 

Kennedy  ^  ^  ""^^^  trial,  on  three  grounds:  1.  That  the  verdict  was  against 
V.  evidence.  2.  That  it  was  against  the  charge  of  the  court.  3.  That 
Gregoky.  competent  testimony  had  been  overruled.  And  although  it  was 
stated  by  one  of  their  honours,  that  the  testimony  which  had 
been  offered  was  waived  after  the  question  put  by  judge  Brack- 
enridge^  the  argument  upon  shewing  cause  turned  almost  ex- 
clusively upon  the  third  ground;  a  majority  of  the  court  in  bank 
being  of  opinion  that  the  testimony  was  not  waived. 

Ingcrscll  and  Wells  argued  for  the  defendant.  Hopkinson  and 
Hare  for  the  plaintiff. 

Shippen,  C.  J.  having  been  prevented  by  ill  health  from  sit- 
ting on  the  argument,  gave  no  opinion. 

Yeates  J.  The  material  question  to  be  considered  In  this 
case  is  whether  evidence  proper  in  itself  on  the  pleadings  has 
been  refused  by  the  court  on  the  trial. 

From  the  statement  of  the  evidence  made  by  the  presiding 
judge,  it  appears  that  Saynnel  Brexvster  one  of  the  witnesses,  on 
the  defendant  finding  fault  with  the  conduct  of  the  plaintiff, 
asked  him  whether  he  was  given  to  intoxication.  To  which  the 
defendant  answered  either  that  the  plaintiff  Joved  liquor,  or  it 
-uas  said  so.  David  Newport  was  offered  to  prove  that  he  had  told 
the  defendant  the  plaintiff  was  addicted  to  drink;  on  which  the 
court  was  divided.  It  has  been  contended  that  the  answer  to 
this  question  was  waived  by  the  defendant's  counsel.  But  tak- 
ing into  view  what  dropped  from  one  of  the  members  of  the 
court  at  the  time,  I  am  not  disposed  to  put  that  construction  on 
it.  A  due  harmony  between  the  bench  and  bar  not  only  con- 
duces to  expediting  business,  but  is  in  a  great  measure  ne- 
cessary in  the  administration  of  justice.  Under  the  circum- 
stances of  the  case  therefore  I  do  not  look  on  the  evidence  as 
waived. 

It  is  settled  in  7  T.  R.  17.  that  a  plea  of  justification  in  slan- 
der under  the  communication  of  another  is  not  good,  unless 
the  author  is  mentioned  at  the  time  of  speaking  the  words;  and 
in  2  East  426.  it  is  resolved,  that  whoever  would  shelter  him- 
self under  report,  must  also  use  the  very  words  of  his  author,  in 
order  to  give  the  plaintiff  an  action  against  him.  A  general 


OF  PENNSYLVANIA.  87 

leave  to  justify  by  our  practice  is  tantamount  to  a  special  plea      1803. 

of  justification  in  Entrland;  and  therefore  it  is  clear  that  New-~Z 

-'  .    ^  .  .  Kennedy 

port  could  not  with  propriety'  answer  the  question  on  the  ^,. 
ground  of  justification.  But  it  is  contended  here  that  the  testi-  Gregouv 
mony  was  not  offered  as  a  justification,  but  in  extenuation  of 
the  damages  for  the  words  spoken.  If  the  words  laid  and 
proved  had  been  substantively  and  independently  charged 
against  the  plaintiff  by  the  defendant,  I  am  strongly  inclined  to 
think  that  the  present  question  could  not  be  asked,  even  to  miti- 
gate the  damages^  on  cither  plea  then  before  the  courtj  unless 
there  had  been  leave  to  give  the  special  matter  in  evidence, 
and  notice  of  the  intention  of  the  party  had  been  previously 
given.  Because  otherwise  it  would  be  a  surprise  on  the  plain- 
tiff, and  he  could  not  come  prepared  to  repel  the  evidence. 

Here  however  one  of  the  plaintifl^'s  witnesses  swore  in  the 
alternative,  that  the  defendant  declared  to  him  either  that  the 
))laintiff  loved  liquor,  or  it  was  said  so.  And  under  these  cir- 
cumstances, I  think  it  was  competent  to  the  defendant  to  shew 
by  Nexvport^  that  he  had  said  so  to  him,  to  take  off  all  presump- 
tion that  the  charge  was  a  fabrication  of  his  own,  mcrehf  in  miti- 
gation of  damages,  as  to  the  words  thus  sworn  to  by  Brexvstcr. 

I  agree  that  new  trials  will  be  seldom  granted  in  actions  of 
slander.  The  peace  of  society  requires  that  slander  should  be 
repressed.  But  in  this  case,  the  presiding  judge  having  declared 
in  his  charge,  that,  he  should  have  been  satisfied  if  the  jury  had 
given  a  verdict  for  the  defendant,  or  if  they  could  find  for  the 
])hiintifr  and  should  find  reasonable  damages,  which  evinced  a 
measuring  cast  in  his  mind,  and  testimony  admissible  in  my 
idea  in  its  nature  not  having  gone  to  the  jury  for  their  consi- 
deration, under  tlie  special  circumstances  of  the  case,  I  am  of 
opinion  that  a  new  trial  sliould  be  granted. 

Smith  J.  When  Nexvport  was  offered  to  prove  that  he  told 
defendant,  phiintifl"  was  given  to  drink,  the  court  was  divided 
upon  the  admissibility  of  the  evidence;  whereupon  it  was  de- 
clared hy  the  court  that,  agreeably  to  the  practice  on  the  circuit, 
the  evidence  was  to  be  given,  and  the  point  whether  admissible 
or  not,  reserved.  The  counsel  who  offered  it,  on  being  asked  by 
the  judge  who  was  in  favour  of  its  admissibility,  Do  you  need 
it?  waived  it. 

Hut  I  will  consider  the  question  as  if  the  court  had  ruled 


88  CASES  IN  THE  SUPREME  COURT 

1803.     that  it  was  not  admissible,  and  as  if  there  had  been  no  waiver 

TennkdT  °*' '^•. 

V.  It  is  clear  that  \n  justification  of  the  defendant  it  could  not  be 

Gregory,  admitted.  "  If  I.  S.  publish  that  he  hath  heard  generally  without  a 
"  certain  author  that  T.  G.  was  a  traitor  or  thief,  there  an  action 
*'  svr  It'  case  lieth  against  I.  S.  for  this,  that  he  hath  not  given 
*'to  the  party  grieved  any  cause  of  action  against  any,  but 
*' against  himself  who  published  the  words,  althtjugh  that  in 
"truth  he  might  hear  them;  for  otherwise  this  might  itnd  to  a 
*'  great  slander  of  the  innocent.  For  if  one  who  h  ith  Ue  am  phan- 
*'  tasiam^ov  who  is  a  drunkard,  or  of  no  estimation,  speak  scan- 
*•'  dalous  words,  if  it  should  be  lawful  for  a  man  of  credit  to 
"report  them  generally,  that  he  had  heard  scandalous  words 
"  without  mentioning  of  his  author,  that  would  give  greater  co- 
*•'  lour  and  probability  that  the  words  were  true  in  respect  of  the 
*'  credit  of  the  reporter  than  if  the  author  himself  should  be 
*'  mentioned;  for  the  reputation  and  good  name  of  every  man 
*'  is  dear  and  precious  to  him."  12  Co.  134.  which  case  is  recog*- 
nised  in  7  T,  R.  19.  by  Lord  Keiujon^  in  delivering  the  opinion 
of  the  court  in  Davis  v.  Lervisy  which  was  an  action  of  slander 
for  speaking  these  words  by  defendant,  of  and  concerning  plain- 
tiff in  his  business  as  a  taylor^  "  I  heard  yon  were  run  axvay;  a 
person  has  been  here  to  tell  me  that  you  zvere  run  away.^*    De- 
fendant pleaded  in  justijication  that  before  the  speaking  of  the 
words  he  the  defendant  had  heard  and  been  told  bv  one  D. 
Morris  that  the  plaintiff  v/as  run  away,  for  which  reason  he 
spoke  them ;  and  on  general  demurrer  judgment  for  the  plaintiff. 
"  Per  Lord  Kcnyon.  Whether  this  be  considered  on  the  authori- 
"  ties  or  on  the  reason  of  the  case,  the  justification  cannot  be 
"  supported."  He  then  cites  the  Earl  of  Northampton's  case  as 
in  point.  "  Then  it  is  said  that  it  is  sufficient  to  repel  such  ac- 
"  tion,  to  disclose  by  the  defendant's  pica  the  person  who  told 
"  him  the  slander;  but  that  is  clearly  no  justification  after  put- 
"  ting  the  plaintiff  to  the  expense  of  bringing  the  action.  The 
"  plaintiff  can  only  impute  the  slander  to  the  man  who  utters 
"  it,  if  the  latter  do  not  mention  the  person  from  whom  he 
"  heard  it.  The  justice  of  the  case  also  falls  in  with  the  deci- 
'^  sions  upon  this  subject.  It  is  just  that  when  a  person  repeats 
"  any  slander  against  another,  he  should  at  the  same  time  de-  • 
"  clare  from  whom  he  heard  it,  in  order  that  the  party  injured 
"  may  sue  the  author  of  the  slander." 


OF  PENNSYLVANIA.  89 

But  it  is  now  discovei-e  J  that  although  true  it  is  this  evidence      j  §03. 

cannot  be  admitted  to   iii.stifu,  vet  it  oufi:ht  to  have  been  admit- "T 

■'       JJT'  o  Kennedy 

led  in  mitigatioii  of  damages.  ,,. 

It  is  truly  said  by  Lord  Mamfield^  Burr.  1 990.  xh'W.favonrahk  GRi-ftORv. 
cases  make  bad  precedents.  Because  on  the  trial  the  inclination 
of  my  mind  was  rather  against  the  plaintiff,  does  it  follow  that  I 
must  incline  to  the  adinission  of  evidence,  which  I  believe  to  be 
contrary  to  the  rules  of  law  properly  understood  and  applied  to 
the  subject  matter?  In  Strange  1200.  in  an  action  for  words,  on 
not  guilty,  defendant  offered  to  prove  the  words  to  be  true  in 
mitigation  of  damages,  which  the  Chief  Justice  refused  to 
permit,  saying  that  "  at  a  meeting  of  all  the  Judges  upon  a  case 
''  that  arose  in  the  Common  Pleas,  a  large  majoritv  of  them 
"  had  determined  not  to  allow  it  for  the  future,  but  that  it 
'  should  be  pleaded,  whereby  the  plaintiff  might  be  prepared 
''  to  defend  himself  as  well  as  to  prove  the  speaking  of  the 
"  words.  That  this  was  now  a  general  rule  amongst  them  all, 
'*  which  no  Judge  would  think  himself  at  liberty  to  depart 
"  from,  and  that  it  extended  to  all  sort  of  words,  and  not  bare- 
''  ly  to  such  as  imported  a  charge  of  felony." 

I  challenge  ingenuity  to  point  out  one  evil  which  woukl  result 
from  such  evidence  being  given  as  matter  of  justification., 
which  would  not  follow  to  almost  the  same  degree,  were  it 
allowed  in  mitigation  of  damages ;  it  would  certainly  follow  to 
a  very  great  degree. 

A  man  whose  declaration  or  even  significant  hint  will  be  ex- 
tensively believed  goes  round  and  makes  such  a  representation 
of  the  plaintiff  as  in  a  short  time  reduces  him  and  his  family  to 
the  want  of  bread.  TIic  injured  party  brings  an  action  against 
the  man  who  has  thus  injured  his  reputation;  the  propagator  of 
the  slander  lies  by  till  the  day  of  trial,  and  then  he  brings  for- 
ward evidence  to  prove  that  some  vile  wretch,  perhaps  whose 
censure  would  be  praise,  told  him  the  words  which  on  his  crc- 
tlit  have  been  believed  from  the  time  he  uttered  them,  but 
which,  had  he  at  first  mentioned  his  author,  would  have  been 
deemed  unworthy  of  the  leirsl  credit.  But  supposing  the  man 
who  told  the  defendant  tiie  words,  to  be  of  eepial  credit  with 
himself  or  even  l)etter,  by  his  lying  I)y  till  the  trial  the  act  of 
limitation  takes  place,  and  the  injured  man  has  no  remedy 
against  the  original  slanderer  under  whom  the  slanderer  has 
sheltered  himself:  this  will  be  the  general  effect  of  the  evidence 

M 


90  CASES  IN  THE  SUPREME  COURT 

1 80o.      offered,  if  adniiucd.  If  such  evidence  would  lessen  the  damages; 

Kenned  '  ""^  cent,  it  would  so  far  deprive  the  plaintiff  of  an  adequate  re- 

T,         medy  against  the  authors  of  his  ruin.  But  in  this  case  there  is 

Gregory,  an  additional  reason  against  its  admission.  Two  or  three  days 

after  speaking  the  words,  plaintiff  and  defendant  both  called  at 

Saimiel  Brervster\<f^  who  repeated  the  words  of  which  he  gave 

evidence  on  the  trial;  even  then  defendant  did  not  give  a  hint 

that  any  other  person  had  mentioned  them  to  him. 

I  conclude  therefore  that  evidence  cannot  be  given  either  in 
justification  or  in  mitigation  of  damages,  that  a  third  person,  not 
named  at  the  speaking  of  the  words,  mentioned  them  to  the  de- 
fendant. A  contrary  decision  or  construction  would  open  a 
school  for  scandal  throughout  the  state. 

At  the  trial  the  inclination  of  my  mind  was  that  there  was 
not  a  sufficient  proof  of  malice;  but  this  was  a  fact  arising  from 
the  evidence  properly  and  solely  within  the  cognisance  of  the 
jury.  Their  verdict  proves  that  there  was  malice  in  defendant; 
and  as  juries  as  veil  as  individuals  are  the  best  judges  within 
their  own  exclusive  province  or  profession,  reflection  induces 
me  to  believe  that  in  this  instance  their  judgment  was  more 
correct  than  mine. 

Malice,  malignity  of  mind,  maybe  evinced  in  a  thousand  dif- 
ferent ways.  The  defendant  went  round  with  the  schoolmaster, 
by  whom  he  wished  to  supplant  the  defendant,  to  different  em- 
ployers, and  by  sly  insinuations  did  him  as  much  injury  as  if  he 
had  made  the  most  direct  and  pointed  charge. 

Brackenridge  J.  continued  of  opinion  that  the  evidence 
should  have  been  admitted  in  mitigation  of  damages.  He  as- 
sented to  the  law  as  laid  down  by  Judge  Sinith  with  respect  to 
pleading  in  justification,  but  thought  it  did  not  apply  to  the  case. 
He  Avas  also  of  opinion  that  the  verdict  was  against  the  weight 
of  evidence. 

Rule  absolute,  (ci) 

(a)  Since  the  appointment  of  Cliief  Justice  Tilghmax,  the  opinion  of  tlie 

court  in  the  case  of  Kennedy  v.  Gregory,  has  received  his  sanction^n  the 

foUowing  case  at  Nisi  Prius.  lb~90J 

"  2wh326 

-,                                 ,^  2wh328l 

Morris  against  Duaxe.  "^t 

IN  this  cause,  which  was  an  action  on  the  case  for  a  libel,  tried  before 
Ttlghman  C.  J.  at  Nisi  Prius  March  21st,  1808,  tlie  defendant  offered  in 
evidence  a  writinjj,  purporting  to  be  tlie  copy  of  an  anonymous  letter  which 


•     OF  PENNSYLVANIA.  "91 

1803. 
Lessee  of  Jenks  against  Backhouse.  December 

31st. 


UPON  the  trial  of  this  ejectment  before  Shipben  C.  J.  and  A  trust 
'■  '  estate  in 

Smith  J.  at  a  Circuit  Court  for  Bucks  in  May  1802,  the  pgnnsyiva- 

plaintiff  shewed  a  reeular  tide  to  the  premises   in  question,'.''-^  ^J<^"'"^"f^' 

.,  /^jiii.'    in  case  01  in- 

being  part  of  a  large  patent,  m  Laxurence  hroivdon^  who  by  his  testacy,  to 

will  devised  the  residue  of  his  estate,  including  the  lands  in  <•'>« 'i'"""  f* 

,  _,,.        common  law. 

controversy,  to  his  two  daughters  Grace  and  Ehzabeth.  Eliza-  «* 

beth  and  Thomas  Nicholson  her  husband,  and  Gi-ace  and  Joseph 

Galloxvaij  her  husband,  who  in  his  own  right  was  entitled  to  one 

from  certain  marks  on  the  back  of  it  was  inferred  to  have  been  in  the  pos- 
session of  B-  F.  Dache,  and  upon  his  deatli  to  liave  come  to  the  defendant 
who  succeeded  him  as  editor  of  tlie  Aurora  in  which  the  Ubel  was  publish- 
ed. The  deatli  of  Mr.  Bache  and  tiie  defendant's  succession  to  the  newspa- 
per were  prior  to  the  libel;  and  the  object  of  the  writint^  offered  was  to  mi- 
tigate the  damajjcs  by  shewing  that  the  defendant  was  not  tlie  inventor  of 
the  charge  he  had  published  against  the  plaintiff,  but  that  this  writing  was 
In  his  possession  at  the  time  and  led  to  the  publication. 

The  principal  argument  offered  by  Hupkinson  for  the  defendant  was  this: 
Tliat  the  libel  being  rharged  in  tlie  df^chiration  to  have  been  malichmslv  and 
falsely  dcviteJ  as  well  as  printed  and  published  by  the  defendant,  though  it 
was  not  necessary  for  the  plaintiff  to  prove  tlie  whole  charge,  yet  the  conse- 
<|uence  of  proving  tlie  whole  would  be  damages  proportionally  high.  It  there- 
fore was  material  to  shew  that  the  chai'gc  was  not  devised  by  him,  for  he 
thus  shewed  that  the  degree  of  malice  was  at  all  events  less  than  if  he  had 
devised  it.  It  could  not  be  given  in  evidence  to  maintain  tlie  plea  of  ;jo/  guil- 
ty,- it  was  in  strictness  no  jiutijication,  and  tliereforc  as  it  was  material  ho 
should  be  allowed  to  offer  it  to  the  jury  in  mitigation  of  damages.  He  cited 
the  case  of  Kennedy  v.  Gregory,  and  Prici's  case  Cro.  yac.  91.  in  Brook  v. 
Montague. 

The  objections  to  this  evidence  by  Lewis  and  Meredith  wlio  were  of  cuun- 
".cl  with  the  plaintiff  were,  that  the  libel  jmblished  by  Dttaiie  contained  no 
reference  to  a  letter  or  to  any  other  source  of  information,  but  was  a 
substantive  charge  proceeding  exclusively  from  him.self,  and  therefore  it 
should  fall  exclusively  on  himself;  that  in  point  of  law  the  malice  was  prov- 
<;d  conclusively  l)y  the  false  publication,  and  it  was  altogether  iirclevant  ti> 
shew  an  absence  (>!' personal  ni:ilice,  and  of  course  a  less  or  greater  degree 
of  it.  That  it  could  not  legally  weigh  a  particle  in  the  defendant's  favour 
that  he  harl  such  a  pa|)er,  when  he  had  altempted  to  poison  the  mind  of  ihe 
public  by  stating  the  charge  uiiecpiivocally  and  witlioul  refeiencc.  'I'iiat  on 
the  contrary  it  aggravated  the  offence,  as  the  reference  might  have  furnish 
ed  the  plaintiff  an  opportunity  of  reselling  his  cliriractcr,  by  exposing  the 
source  fror^i  which  the  calumny  proceeded.  The  case  from  Cro.  yac  was  al- 
*.Onetber different    There  a  chrgAman  recited  from  his  pulpit  a  stcry  from 


Back- 
house. 


92  CASES  IN  THE  SUPREME  COURT 

I8O0.  iwcnt\-lburtli  of  the  patent,  executed  a  deed  of  partition,  and 
~T~~^    ~r;Ulotted  and  granted  the  premises  in  question  by  certain  numbers, 

Jenks  to  Joscjjh  Gallo7voy  and  Grace  his  w'lfv  and  to  the  heirs  of  Grace; 
"v.  certain  other  numbers  to  iV?cA(?/.9on  and  his  wife,  and  certain  other 
numbers  to  Joseph  Gallexvaij  and  his  heirs.  The  deed  was  duly 
acknowledged.  At  the  time  of  the  partition  Galloway  and  wife 
had  issue  Elizabeth.  Galloruai/  was  afterwards  attainted  of 
treason,  and  removed  from  Pennsyhaiiia  to  Great  Britain^ 
where  at  the  time  of  trial  he  remained  in  full  life.  After  his 
attainder  and  departure,  his  wife  died  in  Pennsylvania^  having 
by  her  will  devised  the  premises  to  Abel  Janies^  from  whom 
they  came  to  Thomas  Jenks^  in  trust  for  Elizabeth  Galloway 
the   daughter  and  her  heirs.    Thomas   Jenks  died   intestate 

Fox's  Mart\  roiogy,  tliat  one  Greentvood  for  his  perjuries  and  crimes  liad  been 
killed  by  the  liand  of  God.  GreanDood  was  in  cliurch  at  the  time,  and  a^'tcr- 
wards  broiii^ht  an  action  for  the  words.  But  the  clergyman  pkaded  not 
guilty,  and  it  was  held  the  action  would  not  lie,  by  reason  of  the  occasion  of' 
publishing  the  words.  (The  case  of  Kennedy  v.  Gregory  was  not  in  court,  and 
therefore  was  not  noticed.) 

TiLGTiMAx  C  J.  Tliis  point  is  not  new  to  me,  it  has  occurred  on  the  cir- 
cuit and  been  considered  tlioutrh  not  absolutely  decided  by  me.  Tlie  effect 
of  any  evidence  which  a  defendant  may  offer  is  with  the  jury;  the  compe- 
tency of  it,  with  the  court.  The  ((ueslion  in  this  case  is,  whether  the  defend- 
ant is  entitled  to  offer  to  tlic  jury  tliis  letter,  with  the  explanations,  for  any 
legal  purpose  connected  with  the  cause.  It  certainly  cannot  be  offered  to 
prove  the  plea  of  not  guilty;  and  it  is  no  \ef!;z\justi^cation.  But  still,  is  it  not 
material?  Can  it  be,  that  like  damages  should  be  given  against  two  defend- 
ants, one  of  wliom  received  his  information  from  such  sources  as  were  enti- 
tled to  a  certain  degree  of  credit,  while  the  other  devised  it  by  his  own 
A\icked  imagination?  I  think  it  cannot.  Such  evidence  certainly  goes  to  the 
degree  of  malice,  and  must  weigh  with  the  jury  according  to  the  circum- 
stances which  attend  it.  Wliether  these  circumstances  are  such  as  ought  in 
rea.son  to  mitigate  the  damages,  they  will  decide.  In  the  case  of  Williami; 
and  wife  v.  Mayer  and  vife,  (Circuit  Court,  MiJJlin  county.  May  1806)  1 
expressed  the  inclination  of  my  mind,  that  the  defendants  who  were  sued 
for  slander  in  charging  the  plaintiffs  with  felony,  might  on  general  principles 
give  evidence  of  circumstances  which  had  induced  a  suspicion  of  felony; 
although  in  tiiat  case  the  evidence  was  clearly  admissible  by  way  of  rebut- 
ting something  which  had  been  proved,  in  order  to  aggravate  the  damages, 
by  the  plaintiffs,  and  therefore  the  general  paint  wsts  not  decided.  Since  that 
I  have  observed  in  2  Peai's  Cnmp-  of  Evid.  287.  it  is  said  to  have  been  ruled 
by  Eyre  C.  J>.  in  the  case  of  Knodel  v  Fuller,  that  the  defendant  may  in  mi- 
tigation of  damnges  prove,  on  the  general  issue,  such  facts  and  circum- 
stances as  shew  a  ground  of  suspicion  not  amounting  to  actual  proof  of  the 
plaintiff's  guilt.  I  adhere  to  the  opinion  which  I  had  formed  in  the  case  of 
Wiliiams  V.  Mayer,  and  admit  the  evidence. 


Horsf.. 


OF  PENNSYLVANIA.  9Q 

leaving  six  children;  but  the  lessor  of  the  plaintiff  was  his      1803. 
oldest  son,  and  heir  at  common  law.  The  defendant  derived  Lessee  of 
his  title  under  the  agents  of  forfeited  estates,  who  upon  the     Jenks 
attainder  of  Galloruau-,  sold  the  premises  for  his  life,  supposing         ^^•■ 
him  to  be  so  entitled  as  tenant  by  the  curtesy;  but  this  court     _„^,^J^' 
having  decided  (a)  that  by  his  attainder  the  estate  of  Mrs. 
Gal/oxuay  was  discharged  of  the  curtesy,  this  ground  was  not 
taken  by  the  defendant.  He  however  resisted  the  plaintiff's 
claim  upon  two  other  grounds:  First,  That  in  Pennsylvania  a 
trust  did  not  descend  to  the  heir  at  common  law,  but  to  all  the 
brothers  and  sisters  under  the  intestate  laws;  and  that  therefore 
the  recoverv  could  be  but  for  one  sixth  at  most.  Secondly,  That 
the  deed  of  partition  conveyed  a  life  estate  to  Galloxvay, 

A  verdict  was  taken  for  the  plaintiff  generally,  subject  to  the 
opinion  of  this  court  upon  two  points  reserved,  which  were  the 
defendant's  two  objections;  and  they  were  now  argued  by 
Hopkinson  and  Tilg-hman  for  the  plaintiff,  and  by  Ross  and  the 
Attorney  general  for  the  defendant. 

For  the  plaintiff  it  was  contended  on  the  first  point,  that 
a  trust  descends  in  Pennsylvania  as  it  does  in  England^  and  is 
not  contemplated  in  any  of  the  provisions  of  the  intestate  law. 
They  relate  exclusively  to  the  beneficial  estate.  The  acts  of 
Asscmblv  which  govern  this  case  give  the  eldest  son  two  shares, 
the  widow  her  third  or  moiety,  the  other  children  their  respec- 
tive portions;  in  certain  cases  they  order  a  valuation,  and  what 
is  a  striking  feature,  they  expose  the  whole  of  the  intestate's 
estate,  which  is  in  any  manner  the  object  of  the  law,  to  the 
payment  of  his  debts.  1  St.  Laws  App.  44.  47.  It  is  impos- 
sible that  a  mere  trust  should  be  embraced  by  such  provi- 
sions. The  acts  of  Assembly  are  to  be  construed  like  a  will,  in 
which  a  general  devise  of  all  a  testator's  estate  docs  not  pass  a 
trust.  Attorney  general  v.  Bulhr.  (b)  Neither  will  a  general 
assignment  iiy  a  bankrupt  pass  a  debt  due  to  him  as  trustee. 
Winch  V.  Kcelei/.  {c)  The  argument  ab  inconvcniciiti  in  our 
case  is  very  strong;  and  our  judicial  decisions  n;cognise  th( 
heir  at  law  for  various  purposes  not  witliin  the  intestate  law, 

(a)  l.c-iu'c  of  I'cmberton  v.  Hicks,  ante  1 

fh)  5  Vezjr.  339.  (0  1^-  '-^  ^-  ^^ 


Back- 
house. 


94  CASES  IN  THE  SUPREME  COURT 

1803.      as  in  the  case  of  an  estate  tail,  where  the  oldest  son  has  been 
7^;;;;^ adjudged  to  take. 

Jenks  Second  point.  The  intention  of  the  pai'tics  was  to  keep  their 

-V.  rights  upon  the  old  footing,  and  merely  to  sever  the  possession; 
though  whatever  was  their  intention,  they  had  no  capacity  to 
limit  by  that  deed  any  estate  which  was  not  in  existence  before. 
Who  were  the  parties  that  granted  to  Galloway  and  his  wife? 
Thomas  Nicholsoji  and  wife,  who  certainly  could  not  give  Gal- 
lowaii  an  estate  in  his  wife's  lands.  It  s  contrary  to  the  nature 
of  a  partition  either  by  writ  or  deed  to  alter  the  estate  of  the- 
parties;  they  all  continue  to  be  in  of  their  old  estate.  Co.  Litt. 
169.  b.  177.  h. 

For  the  defendant.  First  point.  The  intestate  laws  include 
within  their  provisions  all  legal  estates;  and  if  there  be  an 
inconvenience,  it  is  for  the  legislature  to  remedy  it.  Its  falling 
into  many  hands  is  no  objection;  for  even  in  England  it  de- 
scends to  coparceners,  and  the  children  of  a  coparcener,  Co. 
Litt.  163.  />.,  and  to  brothers  in  gavelkind,  where  all  the  in- 
conveniences suggested  may  arise.  Indeed  the  opposite  argu- 
ment allows  that  if  all  jfenis^s  children  were  females,  they 
would  take  the  trust  among  them.  The  legislature  knew 
that  trusts  were  in  existence,  and  they  have  used  general 
words.  But  it  is  said  general  words  in  a  will  do  not  pass  a 
trust;  this  has  been  vexata  quccstio^  and  in  the  case  of  Marlow 
V.  Smith  {ci)  the  direct  contrary  was  decided.  The  reason  why 
a  bankrupt's  assignment  does  not  pass  a  debt  owing  to  him  as 
trustee,  is  because  the  statute  1  Jac.  1.  c.  15.  only  says  that 
such  debts  are  to  be  assigned  as  ?LX&for  the  benefit  of  the  bank- 
rupt. As  to  an  estate  tail,  whatever  may  have  been  the  decision, 
it  does  not  apply.  A  man  cannot  be  said  to  die  intestate  of  that 
which  he  has  no  power  to  devise.  The  heir  at  common  law  takes 
per  formam  doni  as  the  person  named. 

Second  point.  The  intention  of  the  parties  is  to  govern;  but 
it  must  be  collected  from  the  deed,  which  explicitly  allots  and 
grants  an  estate  for  life  to  Joseph  Galloxvay.  The  only  ques- 
tion is  as  to  their  power,  which  hardly  admits  of  doubt,  since 
the  wife  was  a  party  and  acknowledged  the  deed.  She  certainly 
i»ay  join  her  husband  in  conveying  her  estate  to  a  third  perstJn, 

Ca)  2  P.  Wws.  198. 


OF  PENNSYLVANIA.  95 


^o. 


Back- 
house. 


and  may  limit  it  by  vise  to  her  husband  and  herself  for  life,      jgOc 
with  remainder  to  her  right  heirs ;  and  this  is  the  same  thing.      i^essee  of 

Jenks 
Reply.  A  trust  will  certainly  descend  to  parceners,  not  be-  ^• 
cause  the  intestate  law  has  so  ordered  it,  but  because  they  form 
together  but  one  heir.  Co.  Litt.  163.  b.  But  although  the  equi- 
table estate  goes  to  all  the  sons  in  gavelkind,  the  trust  does  not, 
nor  to  the  youngest  son  in  borough-english;  the  heir  at  law 
must  alwajs  enter  for  a  condition  broken.  Wcllock  \.  Ham- 
mond, {ci) 

Yeates  J.  delivered  the  opinion  of  the  court. 

The  first  point  reserved  is  whether  the  trust  descended  by  the 
Intestate  laws  of  this  state  to  the  six  children  of  Thomas  Jenks 
deceased,  or  to  the  lessor  of  the  plaintilT,  his  oldest  son  and 
heir  at  the  common  law. 

However  general  the  words  of  our  intestate  act  may  be,  it 
cannot  be  asserted  that  the  legislature  contemplated  trust 
estates  as  governable  thereby.  None  of  the  provisions  which 
have  been  made  by  our  municipal  laws,  seem  applicable  to 
interests  purely  legal.  To  speak  of  a  widow  having  dower  in 
lands  vested  in  her  husband  on  special  trust  and  confidence, 
without  any  beneficial  interest  in  him,  but  for  express  specified 
purposes;  or  of  children  succeeding  to  the  reversion  of  one 
moiety  thereof  after  her  death;  or  making  partition  thereof,  or 
in  case  the  same  cannot  be  divided  without  prejudice  to  or 
spoiling  of  the  whole,  proceeding  to  a  valuation;  or  selling  the 
same  for  payment  of  debts  and  maintenance  of  minor  children, 
in  defect  of  personal  estate  in  the  decedent;  and  a  variety  of 
other  cases  which  may  be  put,  would  sound  very  harshly  in  the 
ears  of  a  lawyer,  and  be  deemed  solecisms. 

We  cannot  make  laws,  but  we  are  bound  faithfully  to  inter- 
pret them  according  to  their  true  intention,  and  must  never 
suppose  that  the  legislature  have  been  guilty  of  palpable  absur- 
dities, where  their  public  acts  are  susceptible  of  a  rational  con- 
struction. The  di\  ision  of  a  fiduciary  interest  into  many  parts 
in  diflcrent  proportions,  and  vesting  it  thus  split  up,  in  many 
instances  in  minors,  incapable  of  discliarging  the  functions  of 
the  trust,  would  be  attended  with  many  inconveniences.  The 

U)  Cro.  Eliz.  104. 


HOUSE. 


96  CASES  IN  THE  SUPREME  COURT 

1803.      ficlvtise  doctrine   docs   not  impair  the  principle  of  equality 
J  among  the  children  ol  a  common  parent,  adopted  by  the  policy 

Jekks      of  our  laws.  In  the  case  ot  an  estate  tail  after  the  death  of  the 
1'.         tenant  in  tail,  it  has  been  determined  at  Tork  Nisi  Prius  that 

Back-  j^jg  j^^.jj.  ^^  common  law  shall  take  the  lands  thus  intailed.  He 
claims,  it  is  said,  through  his  a.nctstor  per  Jorma?n  doni;  yet  as 
to  the  purpose  of  taking  he  is  considered  as  the  heir  of  the 
father.  The  strong  ground  of  the  decision  I  take  to  have  been, 
that  it  had  been  the  uniform  received  opinion  of  the  profes- 
sion, that  such  a  case  was  not  within  the  true  spirit  of  the  intes- 
tate acts,  that  many  estates  have  been  held  under  it,  and  that 
it  would  be  highly  dangerous  at  this  time  to  impeach  the  doc- 
trine. This  argument  holds  in  all  its  force  in  the  present 
instance.  From  the  best  inquiry  we  have  been  able  to  make, 
and  concurring  as  we  do,  that  the  vesting  of  a  trust  by  the  rules 
of  descent  at  common  law  will  best  answer  the  ends  of  its 
creation,  that  our  intestate  acts  only  respect  beneficial  and  not 
confdential  interests,  and  that  the  application  of  them  to  trusts 
would  produce  many  difficulties  and  mischiefs,  we  feel  no  diffi- 
culty in  declaring  that  the  trust  in  this  instance  became  vested 
in  the  eldest  son  of  Thomas  Jenks  the  trustee. 

On  the  second  point  we  have  no  doubt.  We  do  not  think  it 
was  the  intention  of  the  parties  to  the  partition,  to  vest  Joseph 
Galloxvay  with  any  other  interest  in  the  land,  than  he  had  pre- 
vious thereto.  He  was  tenant  by  the  curtesy  initiate  of  an  un- 
divided right,  and  the  only  object  of  the  deed  appears  to  be  that 
they  should  hold  the  right  in  severalty.  Indeed  it  has  been 
truly  said  that  it  was  not  competent  to  the  parties  to  extend 
his  interest  in  the  lands. 

On  the  whole  we  conclude  that  judgment  should  be  entered 
for  the  plaintiJF  for  the  whole  of  the  lands  recovered  by  the 
verdict. 

Judgment  for  Plaintiff. 


OF  PENNSYLVANIA.  97 

91 
327  1804. 

64  — 

,S  r.  •  T.  Tuesday, 

1^  .  i  ETRY     agai7lSt  iSY.AVXKRLET.  September 

V  4«  llth. 

'TN  this  case  upon  the  motion  oi  Milnor.  a  rule  was  e-ranted  ^^^'^^shenr 

-■-  upon  the  sheriff  oi  BucAi-  county  to  bring  uito  this  court  cer-  ncv  raised  by 

tain  costs  which  he  had  retained  out  of  the  money  raised  bv  ^^  execution 

•    upon  land 

execution  upon  the  defendant  s  lands.  pays  o(f 

Upon  the  return  of  the  rule  it  appeared  that  with  the  money  1"°'*^'^^!^"'^ 

\  ...  '   jiiclpnients 

SO  raised  the  sheriff  had  paid  off  several  judgments  and  a  mort-\vliich  had  a 
gage  upon  the  premises  sold,  which  being  prior  to  the  judgment  P^^V  V^"  ^ 
in  this  case  were  entitled  to  prior  satisfaction;  and  that  he  hadmciit  under 
charged  a  poundage  upon  the  different  sums  so  paid,  which  was  ^^^|^^^^.^^  ^ 
the  money  brought  into  court,  instead  of  confining  himself  to  made,  he  is 
the  real  debt  in  Pctry's  execution.  plnmdagl" 

ujion  the 
Ml/nor  cited  the  act  establishing  an  explicit  Fee  Bill  which  ^.J^^  ihoutrh 
limits  the  poundage  of  the  sheriff  for  selling  lands  levied  on,  it  exceed  the 
and  expressly  orders  "  that  no  poundage  shall  be  paid  for  more  ^j^'^  cxccu- 
"  than  the  real  debt  in  the  execution."  3  St.  Laws.  782.  But      tion, 

Per  Curiam.  The  construction  of  that  clause  has  uniformly 
allowed  to  the  sheriff  a  poundage  upon  the  payment  of  all  prior 
judgments  and  mortgages.  He  must  therefore  take  his  costs. 


The  Comnionwculth  against  Da  vies.  Wednesday, 

Same  against  North.  miu"^  ^^ 


TIIK  defendants  in  Auifiist  1797  became  severally  bound  to  J'"^  ^^o"""' 
1    1     1      r  1        r^^   ■     r  •  r    i   •  •      httsnoautho- 

the  commonwealtli  before  the  Chief  Justice  of  this  court  m  rity  to  mode- 


»  recocmisance  in   1000  dolls,  conditioned  for  the  crood  beha-'^'*''"'''^"^'* 

...  .  .  *  ICCOglll- 

viour  oi  William  Cobbctt  until  the  next  Oyer  and  Terminer  to  be  sauce  of^ood 

holden  by  the  justices  of  this  court  for  the  city  and  county  of    ,  !"\^".""> 

^   ,       ;'  .  •'  '         wlncli  js  for- 

Philndclph'ia.  The  recognisance  was  alleged  to  have  been  taken  rcitrd  by  an 

in  consccnience  of  a  libel  or  libels  published  h\  Cobbctt  in  the  "'^  "'",'., 
1  '  J  curt.  I  he 

newspaper  of  which  he  was  the  editor;  and  upon  the  publication  act  of  As- 
of  other  libellous  nutter  by  hiin  before  the  court  of  Oyer  •^"Jii'|"'p,y„^cr  lo 
Terminer,  actions  of  debt  were  brought  against  him  and  his  the  court  on- 
sureties,  on  the  recognisance.  [c^.^nU^''^ 

sauce  is  f  ir- 
feited  in  court,  as  upon  failure  to  appear,  to  prosecute,  &c 

N 


Davies. 


98  CASES  IN  THE  SUPREME  COURT 

1804.  The  action  against  Davies  was  triL-d  in  March  1801  when  a 

"Co"  ioi>  ^'^'"'^''-^  ^^''^  Ibund  for  the  commonwealth  generally,  with  six 
wc.tlih  pence  damages  and  six  pence  costs,  upon  which  there  was  judg- 
7  •  ment.  The  cause  was  then  removed  to  the  Court  of  Errors, 
where  the  judgment  was  affirmed.  The  action  against  iVorM 
was  tried  in  February  1804,  with  the  same  result  in  this  court. 
In  each  of  these  causes  several  important  points  were  made  for 
the  (lefendimt;  as  that  the  chief  justice  had  no  authority  to  take 
surety  of  good  behaviour  out  of  court,  not  being  a  justice  of  the 
peace;  that  it  could  not  be  taken  before  conviction,  for  the  publi- 
cation of  a  libel;  {(i)  that  scire  facias  and  not  debt  should  have 

{a)  As  the  decision  of  the  court  of  errors  upon  these  points  has  not  been 

preserved  to  my  knowledge  by  any  {gentleman  of  the  bar,  I  feci  assured  that 

the  opinion  of  the  present  chief  justice  upon  the  doctrine  of  surety  of  j^ood 

behaviour,  will  be  acceptable  to  the  profession,  and  I  therefore  take  tlic 

liberty  of  inserting  it.  The  facts  of  the  case,  which  was  decided  at  the 

chambers  of  the  Chief  Justice  on  Monday,  August  11th  1806,  are  sufficiently 

dctailtd  in  the  opinion.  i    ib    ',»8 

10    340' 

Commonwealth  "^  Habeas  Corpus  to  the  keepei-  of  the  gaol  of  the  city 
^     ''■  r  &nd  county  oi' P/iiiadelphi a. 

DUANE.  J 

TiLGHMAN  C  J.  This  case  comes  before  me  in  consequence  ofa  habeas 
corpus,  (lii-fcu-d  to  the  gaoler  of  the  city  and  county  of  Philadelphia,  com- 
manding him  to  bring  before  me  the  body  of  Williavi  Duane,  together  with 
the  cause  of  his  being  imprisoned.  The  gaoler  in  obedience  to  the  writ  has 
produced  the  body  of  Wiiliuin  Duane,  and  returned  that  he  was  detained  in 
prison  by  virtue  ofa  warrant  of  commitment  from  the  mAyor  of  Philadelphia. 
This  warrant  recites,  that  Williain  Duane  had  been  cliarged  on  the  complaint 
of  the  Marquis  de  CasaTrujo,  made  through  the  attoniey  general,  and  on  the 
oath  of  William  B.  Hi^ht,  with  having  on  the  19th  and  21st  of  July  last,  in  a 
public  newspaper  called  tlic  Aurora  or  General  Advertiser,  edited  by  the  said 
William  Duane.  ]5ublished  certain  libels  on  the  said  Marquis,  and  tliat  the 
said  William  Duane  iiad  been  required  by  tlie  said  ma}()r  to  enter  into  are- 
cognisance,  as  well  for  his  appearance  at  the  next  major's  court,  as  for  his 
good  behaviour  in  the  mean  time,  which  lie  had  refused  to  do;  and  contains  a 
commitment  of  William  Duane  until  lie  shall  enter  into  a  recognisance  as 
aforesaid,  or  be  delivered  by  due  course  of  law. 

From  an  examination  that  has  been  had  before  me,  it  also  appears  that  the 
said  William  Duane  oflered  before  the  mayor  to  enter  into  a  recognisance 
for  his  appearance,  but  refused  to  enter  into  one  for  his  good  behaviour.  So 
that  the  only  question  for  my  determination  is,  whdherit  is  proper  to  insist 
on  a  recrifrnisance  for  the  good  behaviour  of  William  Duane  between  this 
time  and  the  next  mayor's  court. 

In  the  considerati(<n  of  tltls  point  are  involved  principles  of  importance, 
which  have  ajritatcd  'ii"  feelings  and  divided  the  judgments  of  many  persons 
both  in  tins  and  other  states  of  the  union 


OF  PENNSYLVANIA.  99 

been  the  form  of  action;  and  that  tht  publiciition  of  a  libel  was      1804. 
no  forfeiture  of  the  recognisance.   Thes- points  were  discussed  rommnr^ 
before  the  Court  of  Errors,  and  decided  for  the  commonwealth;      wealth 
(as  it  is  said.)  But  the  point  which  led  ultimately  to  the  present         ^• 
argument,  and  which  was  principally  urged  in  the  action  against    ^^^^s^- 
North,  was  this,  that  unless  the  jury  might  find  less  than  the 
whole  amount,  and  this  it  was  said  they  could  not  do,  a  recog- 
nisance of  this  kind  if  forfeited  by  a  libel  would  prove  a  direct 

I  Jiave  considered  it,  certainly  without  passion  or  prejudice,  and  witli  as 
much  attention  as  the  short  time  allowed  for  decision  would  admit. 

Surety  for  g-ood  behaviour  may  be  considered  in  two  points  of  view.  It  i» 
either  required  after  conviction  of  some  irulictable  offence,  in  which  case  it 
forms  part  of  the  judgment  of  the  cou:t,  and  is  founded  on  a  power  incident 
to  courts  of  record  Ijy  the  common  law,  or  it  is  demanded  by  judq^us  or  jus- 
tices of  the  peace  out  of  court,  before  the  trial  of  the  person  charj^ed  with 
an  offence,  in  pursuance  of  authority  derived  fioni  a  statute,  made  in  the 
34th  year  oi  El-jiard  .3.  It  is  this  last  kind  of  surety  we  are  now  to  consider. 
•  The  statute  34  Edward  3.  authorizes  justices  of  the  peace  to  take  surety  fov 
good  behaviour  of  all  those  tiiai  are  not  of  good  fame,  to  the  intent  that 
the  public  may  not  be  troubled  by  such  peisons  It  is  su])posed  that  this;, 
statute  was  made  to  prevent  the  disorders  which  were  introduced  by  the* 
soldiers  oi Edward  \.\\o  third,  numbers  ofwiiom,  after  servinij  in  his  armies 
in  France,  were  discharged  in  England.  The  natural  meaninjf  of  the  words 
"  persons  not  of  good  fame"  seems  to  be,  those  who  by  their  general  evil 
course  and  habits  of  life  liad  acquired  a  bad  reputation,  and  were  supposed 
to  be  dangerouH  to  the  communitj .  In  process  of  time,  however,  the  con- 
stniction  of  these  expressions  has  been  extended  far  beyond  their  original 
meaning,  .ind  persons  are  now  commonly  held  to  find  surety  for  their  good 
behaviour,  who  arc  not  generally  of  ill  fame,  but  have  only  been  chai  ged  w  ith  ' 
some  particular  offence.  It  is  laid  down  by  some  ancient  authors,  that  libel- 
lers may  be  held  to  surety  for  good  behaviour.  But  on  searching  tlie  EvgUth 
books  of  report<,  I  find  but  few  cases  in  whic'i  c  )urts  have  given  their  opin- 
ion on  this  point.  The  decisions  of  the  Englia/i  courts  jirior  to  our  revolution, 
are,  with  some  exceptions,  received  as  autliority  in  our  courts.  Now  it  ap- 
pears from  the  cas<"!  before  the  revolution,  tliat  it  was  by  no  means  an  estab- 
lislied  practice,  that  a  man  charged  with  a  lib<-l,  sIkmiUI,  bclbre  conviction, 
be  held  to  surety  for  his  good  behaviour.  In  the  cabe  of  the  King  v.  Shuci/'urgt 
in  the  year  1743,  reinnted  1  Wilson.  2'J.  the  defendant  was  arnsleil,  by 
virtue  of  a  warrant  from  liie  secretary  of  state,  for  publishing  a  blas|)hcnioui 
libel  called  "  Old  L-  f>land's  Te  Dcutn."  Upon  being  brought  up  to  the  court 
of  king's  bench  by  habeas  corpus  in  order  to  be  bailed,  he  offered  to  enter 
into  the  common  recognisance  for  his  appearance.  The  attorney  general 
In.sisted  on  bail  f«r  his  good  b'-jiaviour  also.  I'lie  lord  chief  justice  said  it 
had  often  been  taken  both  ways,  and  he  intended  to  take  the  opinion  of  all 
tlie  jutlgcs;  he  therefore,  for  the  present,  took  the  <lefendant'H  recognisance 
for  his  appearance  only,  and  made  him  enter  into  a  rule  to  put  in  bail  for 
his  goo<l  behaviour  if  the  major  part  of  the  judgeu  should  ha  of  opinion  iJmt 


Uavies. 


100  CASES  IN  THE  SUPREME  COURT 

1804.      restraint  upon  the  press.  Shippcn  C.  J.  before  whom  ^x\d  Smith 

Common-  J*  ^^^^  cause  was  tried,  told  the  jury  as  to  this  point  that  if  they 

wealth     were  of  opinion  with  the  commonwealth  they  might  find  for  the 

T-         whole,  as  the  court  had  authority  under  an  act  of  Assembly  to 

moderate  or  remit  the  forfeiture.  They  accordingly  found  for 

the  whole  as  above  stated  and  a  judgment  was  entered  upon 

their  verdict  at  March  term  1804. 

On  the  13th  March  1804  the  defendants  filed  their  petition 

he  oupht.  Nothing-  further  appears  to  have  been  done  in  this  case.  In  a  mar- 
ginal note  of  the  report  of  it  by  sergeant  Wilson,  is  mentioned  the  case  of  the 
A'/'n^  V.  Franilin,  5  George  "id,  when  the  Same  point  was  argued  before  all  the 
jiidg-es,  btit  tliev  never  gave  any  opinion.  Mr.  Highniorc,  in  his  treatise  on 
bail,  published  in  the  year  178.>,  cites  the  case  of  the  King  v.  Shuciburg  and 
seems  to  consider  the  law  as  still  unsettled.  It  appears  from  these  authorities, 
that  the  English  '}w\^es  were  unwilling  to  establish  a  practice,  whicli  they 
might  have  thought  hostile  to  tlie  genius  and  spiiit  of  the  nation.  Let  us  now 
examine  how  this  matter  has  been  considered  in  America.  The  United 
States  in  general  liavc  at  all  times  been  very  much  alive  to  the  liberty  of  the 
press,  and  the  riglit  of  trial  by  jur}' ;  and  their  constitutions  have  shewn  great 
jealousy  and  sensibility  on  these  points.  In  prosecutions  of  libels  against  the 
king,  iind  officers  of  government,  it  has  been  usual  in  England  to  prosecute 
by  way  of  information;  a  mode  of  proceeding,  by  which  the  defendant  is 
brought  to  his  trial  by  a  petit  jury,  at  the  instance  of  tlie  attorney  geneial, 
without  the  previous  inquiry  by  the  gi-and  jury.  The  constitution  of  Pennsyl- 
vania has  taken  special  care  to  guard  against  this.  Grand  juries  are  not  to 
be  dispensed  with,  excejJt  in  certain  enumerated  cases,  of  which  libel  is  not 
one.  It  also  piovides  that  every  citizen  may  freely  speak  write  and  print  on 
any  subject,  being  responsible  for  the  abuse  of  that  liberty.  I  think  the  counsel 
for  Mr.  Duane  has  gone  too  far,  in  contending  that  our  constitution  abso- 
lutely prohibits  tlie  binding  a  man  to  his  good  behaviour  for  a  libel,  before 
conviction.  It  only  provides  that  a  man  may  freely  speak  write  and  print, 
at  his  own  peril,  being  responsible  either  to  the  public  or  any  individual 
whom  he  may  injure.  It  is  general!}  understood,  and  1  think  trul)',  that  this 
provision  was  intended  to  prevent  men's  writings  from  being  subject  to  the 
previous  examination  and  control  of  an  officer  appointed  by  the  govern 
ment,  as  is  the  practice  in  many  parts  of  Europe,  and  was  once  the  practice 
in  England:  now,  a  man  though  bound  to  his  good  behaviour,  may  still  pub- 
lish  what  he  pleases,  and  if  he  publishes  nothing  unlawful,  his  recognisance 
will  not  be  forfeited.  Indeed  1  consider  this  point  as  having  been  decided 
by  the  supreme  court,  and  ultimately  by  the  high  court  of  errors  and  appeals 
in  the  case  of  the  ConiTnonwealtk^v.  Cobbett,  which  I  shall  consider  more  par- 
ticularly presently.  But  alti.ough  it  ban  bten  decided  that  a  recognisance 
when  thus  taken  is  not  void,  \et  it  never  has  been  decided  within  my  know- 
ledge, that  it  is  incumbent  on  a  judge,  or  that  it  js  prudent  or  proper,  to  call 
for  surety  of  good  behaviour  from  a  person  charged  with  a  libel,  before  trial, 
and  that  is  the  point  now  be'oie  me.  Indeed  from  the  charge  dehvered  by 
C.  J.  Shipper  in  Cobbett's  case,  of  which  my  brother  Judge  Smith  has 


OF  PENNSYLVANIA.  101 

that  the  court  would  moderate  or  remit;  and  on  this  day  when      1804. 
the  matter  was  called  up,  the  attorney  general  questioned  the  p  _  "  r~ 
authority  of  the  court  to  interfere;  whereupon  that  point  was      weulth 
argued  by  Lervis  for  the  defendants;  Jf-Kean  contra.  v. 

The  act  in  question  was  passed  on  the  9ih  December  1783.  ^^^^^^• 
The  preamble  recites  that  the  act  was  passed  "  to  the  end  that 
"  all  fines,  forfeited  recognisances  he.  forfeited  and  recovered  in 
'*  any  courts  in  this  commonwealth  may  be  the  more  easily  col- 
favoured  me  with  a  ven'  accurate  note,  I  should  not  suppose  that  the  chief 
justice  or  either  of  the  other  judi^ts  would  liave  thought  it  proper  to  cat! 
for  this  kind  of  surety,  except  under  very  extraordinary  circumstances.  The 
case  now  before  me  is  attcndt- d  with  no  extraordinary  circumstances,  so  far 
as  it  has  come  to  my  kiiowled^je  judicially;  aiid  I  must  confine  myself  to  the 
evidence  produced.  The  mayor,  w!io  was  so  obliginp  as  to  favour  me  with  an 
account  of  wliat  passed  at  his  office,  declared  that  lie  considered  the  secu- 
jity  for  i^ood  b<;haviour  as  a  thing  quite  of  course,  and  for  that  reason  only 
would  not  dispense  with  it.  And  he  al-o  dtcl:.red,  tha'  he  prepared  the  re- 
coprnisance  himself  in  what  he  conceived  the  usual  form,  without  the  instruc- 
tion or  direction  of  the  attorney  general.  Now  if  this  practice  is  established, 
two  consequences  will  follow,  which  certainly  may  be  attended  with  great 
inconvenience.  In  the  first  place  Uie  justice  who  takes  the  recognisance 
mav  fix  it  in  whatever  sum  he  pleases,  and  then  if  it  should  be  forfeited  by 
X  libel  of  the  mildest  nature,  the  whole  penalty  must  be  recovered,  without 
any  power  in  tlic  court  to  mitigate  the  punishment  according  to  the  nature 
of  the  offence.  And  in  the  second  j)lace,  the  defendant  may  be  brought  to 
trill  for  a  libel,  to  far  as  to  Le  burthened  with  the  forfeiture  of  his  recogni- 
lance,  without  the  previous  investigation  of  a  gi-and  jury.  No  considerate 
man  will  say  that  under  certain  circumstances  these  may  not  be  very  great 
ovils.  No  man  can  e.xactly  calculate  Low  far  a  practice  of  this  kind,  exer- 
cised by  wicked  and  daring  hands,  into  which  it  may  sometimes  fall,  may 
stifle  or  even  extinguish  the  spirit  of  honest  investigation  and  necessary  in- 
quiry. And  wliat  is  the  occasion  for  it  J  '1  Ijc  party  complaiuing  lias  a  right  to 
the  protection  of  the  laws  and  will  receive  it.  The  person  accused  will  be 
brought  to  his  trial,  and  if  convicted  he  will  be  punished  according  to  the 
degree  of  the  oflence  What  muc  does  public  justice  require?  But  it  is  said, 
it  is  necessary  to  prevent  future  libels.  If  future  libels  are  published  while 
tlio  prosecution  is  depcmling,  they  will  be  punished  on  conviction  in  propor- 
tion to  the  obstinacy  of  the  ofieinlcr.  No  man  abhors  more  than  I  <lo  the  base 
practice  of  libelling.  It  Is  a  crime  forbidden  by  the  laws  of  God  and  man, 
and  of  a  much  iilacker  dye  than  niany  men  secn>  to  be  aware  of  All  classes 
and  descriptions  of  men,  all  putties  have  in  their  turn  lajncntcd  and  suffered 
by  the  uncontrolleJ  licentlousnesi  of  the  pi  ess.  I  aiu  not  without  hopes  that 
the  evil  will  be  lessened,  that  a  remedy  will  be  found  in  the  honesty  and 
good  sense  of  a  majority  of  the  people,  aided  by  the  wholesome  chastisement 
which  courts  and  juries  will  be  called  on  from  time  to  lime  to  inflict  liut 
in  order  to  give  those  punishments  their  ftill  cffica'  y  in  the  community,  it 
will  be  n«cc«ary  in  judicial  proceedings  to  temper  firmness  with  liberality, 


v. 
Davies. 


102  CASKS  IN  THE  SUPREME  COURT 

1804.  "  lertcd  levied  and  paid  into  the  public  treasury;"  and  the  fourth 
Common-  ^*'^^'^"  tnacts  "  that  all  recognisances  forfeited  in  the  Supreme 
wealth  "  Court  or  in  any  court  of  oyer  and  terminer  &c.  shall  be  sued 
"  foi-  and  be  recoverable  in  the  supreme  court  of  this  state, 
"  which  is  herebv  empowered  to  order  the  said  recognisances  ^ 
'•  to  be  levied,  moderated^  or  remitted,  according  to  justice  and 
"  their  legal  discretion."  2  St.  Laws  167. 

The  Attorney  General  contended  that  the  power  of  the  court 

never  fore^ettini^  that  humane  principle,  which   in  doubtful  cases  turns  the 
scale  in  ln\our  of  the  accused. 

I  should  have  folt  little  difficulty  in  deciding  the  question  before  me,  but- 
for  the  case  of  Wtlliciin  Cobbett,  cited  by  the  attorney  general  in  his  argu- 
tne;it.   Mr.   Cobbett  was,  in  the  year  1797,  bound  with  two  sureties  in  a  re- 
cognisance for  bis  good  behaviour,  1)v  tl^e  chief  justice  and  present  governor 
M^Kenn  whose  opinion  has  great  weight  with  me,  bccau.se  I  consider  him 
as  an  eminent  lawyer,  zealously  attached  to  the  liberties  of  this  country  both 
civil  and  religifuis.  I  have  not  been  able  to  obtain  an  accurate  statement  of 
the  case  of  Cobbett,  so  far  as  relates  to  the  binding  of  him  to  his  good  be- 
haviour.  Judge  Smith's  notes  only  contain  an  account  of  the  action  on  the 
recognisance  tried  in  the  supreme  court.  As  far  however  as  1  have  heard,  it 
differs  from  the  present  case  in  .some  material  circumstances.   I  have  never 
seen  the  warrant  against  Cobbett,  but  I  have  been  informed  that  he  was 
charged  in  it  with  numerous  libels  against  different  persons,  of  which,  on  his 
appearance  before  the  chief  justice,  he  avowed  himself  the  author.  In  the 
present  case,  BiKine  is  charged  with  publishing  two  libels  against  the  same 
person,  and  he  lias  not  confessed  that  he  is  the  author  of  either.  As  a  judge, 
I  know  nothing  that  is  not  legally  proved  before  me.  1  must  no/  act  on  .the 
supposition  that  the  defendant  lias  published  numerous  libels,  because  there 
is  no  oath  to  that  purpose,  and  by  our  constitution  all  warrants  must  be 
grounded  upon  an  oath  or  affirmation.  Upon  the  whole,  the  most  that  can 
be  said  with  regard  to  recognisances  for  good  behaviour  is,  that  they  are  de- 
mandable  or  not,  at  the  discretion  of  the  judge.  They  differ  from  recogni- 
sances to  keep  the  peace,  in  two  important  features:  1.  Surety  for  gof)d  beha- 
viour is  more  exiensivc  in  its  natvn-e  than  surety  for  the  peace,  and  may  be 
more  easily  forfeited,  and  therefore  should  be  exacted  with  greater  caution. 
2.  Surety  of  the  peace  is  demandable  of  right  by  an)  individual  who  thinks 
himself  in  danger  of  bodily  hurt,  and  will  make  tlie  neces.sary  oaths;  but  this      ,j 
principle  has  not  been  applied  to  surety  for  good  behaviour.  1  will  not  say 
that  there  are  no  circiinistancfs  in  which  surety  for  good  behaviour  ought 
not  to  be  exacted  in  cases  of  libels  before  conviction;  on  the  contrary,  1  liavc 
no  doubt  but  there  are  occasions  on  which  it  may  be  proper  and  necessary  to 
insist  on  it.  But  I  am  of  opinion  that  it  will  be  most  agreeable  to  the  spirit  of 
our  constitution,  and  most  conducive  to  the  suppression  of  libels,  to  adopt  it 
as  a  general  rule,  not  to  demand  surety  for  good  behaviour  before  cohviction. 
Under  these  impressions  I  must  diacha.ge  the  defendant,  on  his  entering 
into  a  recognisance  for  his  appearance  at  the  next  mayor's  court. 


OF  PENNSYLVANIA.  103 

to  moderate  or  remit  was  confined  to  forfeitures  in  court,  as      1804. 
upon  recognisances  to  appear,  to  prosecute  &c.:  but  that  it  did"! 
not  extend  to  a  recognisance  ot   this  kind  forfeited  by  an  act     wealth 
out  of  court. 


Davies. 


Lervis  argued  that  the  phrase  forfeited  in  the  Supreme  Court 
applied  with  as  much  force  to  a  recognisance  adjudged  to  be 
forfeited  in  the  Supreme  Court  as  this  had  been,  as  to  any  re- 
cognisance whatever;  and  although  the  forfeiture  might  have 
been  the  consequence  of  an  act  out  of  court,  yet  from  the  gene- 
ral expressions  of  the  legislature,  and  from  the  superior  neces- 
sity for  a  power  of  relieving  in  cases  of  this  kind  it  was  fairly 
to  be  inferred  that  all  forfeitures  if  adjudged  in  court,  were 
subject  to  the  equitable  control  spoken  of.  Very  few  recogni- 
sances to  appear  and  prosecute  are  ever  taken  in  this  court,  as 
it  has  no  original  criminal  jurisdiction;  and  the  court  have  at 
common  law  a  power  of  relieving  in  such  cases. 

[Yr.ATEs  J.  Upon  legal  grounds;  but  there  maybe  a  reason- 
able excuse  addressed  to  the  discretion  of  the  court.] 

Still  the  distinction  between  forfeitures  in  and  oiit  of  court 
does  very  little  for  such  recognisances;  for  it  is  the  staying 
away,  the  refusal  to  appear  and  prosecute,  that  is  the  forfeiture; 
the  proclamations  are  merely  to  ascertain  that  the  party  is  not  in 
court,  but  the  forfeiture  is  in  strictness  by  an  act  out  of  court. 

But  further;  the  clear  object  of  the  act  is  to  estreat  all  forfei- 
tures from  the  different  courts  and  justices  of  the  peace  into  the 
office  of  the  comptroller  general.  There  can  be  then  no  legal 
mode  of  ascertaining,  certainly  none  of  estreating  a  forfeiture 
except  from  a  justice  of  the  peace,  until  it  is  forfeited  in  court; 
and  the  instant  it  is  so  forfeited  it  becomes  subject  to  the  dis- 
cretion of  the  court.  A  recognisance  to  keep  the  pi'ace,  forfeited 
by  an  assault  and  battery  upon  one  Cecily  was  remitted  by  presi- 
dent Co;i('tf  in  the  Common  Pleas  oi  Delaware ^  in  August  1801. 

Reply.  The  power  to  remit  a  forfeiture  is  both  at  common 
law  and  by  the  constitution  properly  vested  in  the  executive; 
and  the  law  in  question  interferes  in  this  particular  so  materially 
with  the  9th  section  of  the  2d  article  of  the  constitution,  that  it 
must  be  considered  as  repealed. 

[Shjppen  C.  J.  The  word  in  the  constitution  is  remits  in  the 
law  moderate  or  rejnit;  besides,  the  constitution  does  not  con- 


104  CASKS  IN  THE  SUPREME  COURT 

1804.      *^'"  negative  words;  it  says  the  governor  may,  but  it  does  not 

t;  ;     sav  the  legislature  may  not  remit.] 

Common-      .  o  /  j 

wealth         The  law  however  as  it  derogates  from  the  common  law  must 
V.         be  construed  strictly;  the  letter  of  it  must  be  adhered  to;  and  ii 

Davies.  thgj-e  a^g  some  kinds  of  recognisances  which  are  forfeited  in, 
and  others  which  are  forfeited  out  of  court,  the  former  alone 
are  subject  to  the  provisions  of  the  law.  Of  this  distinction 
there  cannot  be  a  question.  Of  the  latter  kind  is  the  recogni- 
sance in  the  present  case;  of  the  former  are  those  to  appear  &c. 
which  are  forfeited  in  court,  not  in  consequence  of  doing  an  act 
out  of  court,  but  for  not  doing  an  act  in  court,  which  is  the  place 
of  performance  and  also  of  forfeiture.  But  it  is  said  these  are 
not  a  sufficient  object  for  the  legislature.  This  in  the  first  place 
is  not  the  fact,  for  they  exceed  tenfold  all  other  recognisances; 
in  the  next  place  the  section  Avhich  has  been  read  adds  to  the 
Supreme  Court  any  court  of  Oyer  and  Terminer,  General  Gaol 
Delivery,  Admiralty  Sessions,  and  special  commissioners  of 
Oyer  and  Terminer,  v/hcre  none  but  recognisances  to  appear  and 
prosecute  can  be  forfeited,  or  even  be  adjudged  to  be  forfeited, 
from  a  want  of  civil  jurisdiction;  so  that  the  forfeitures  in  these 
courts  must  be  of  that  kind  for  which  it  is  argued  the  law  was 
not  made.  The  plain  ground  of  the  section  is  to  give  a  power 
of  relief  upon  equitable  grounds.  > 

As  to  the  case  oi  Davies,  however,  there  is  another  objection 
to  the  interference  of  the  court;  it  has  been  removed  to  the 
Court  of  Errors,  where  the  judgment  has  been  affirmed;  so  that 
to  touch  it  is  to  affect  a  judgment  of  that  court,  (a)  This  objec- 
tion is  fatal;  and  even  in  North's  case  there  was  a  judgment  at 
the  last  term,  which  is  no  longer  in  the  power  of  the  court. 

At  the  conclusion  of  the  argument  the  Court  said  that  they 
clearly  could  not  interfere  with  the  case  of  Davies,  which  had 
been  removed  to  a  higher  court;  but  they  would  hold  the  other 
case  under  consideration  until  the  following  morning;  when  the 
petition  in  both  cases  was  dismissed. 

Shippen  C.  J.  There  is  abundantly  more  reason  for  a  power 
in  the  court  to  moderate  or  remit  a  forfeiture  of  this  kind  than 

{a)  When  a  judgment  of  this  court  is  afiirnied  in  tlic  high  court  of  errors, 
ihc  record  is  remitted  to  this  court  for  execution,  as  was  done  in  this  ca?e 
on  the  10th  September  1804  before  the  arpuraent. 


OF  PENNSYLVANIA.  105 

in  those  cases  which  come  expressly  within  tlie  law;  ior,  as  it      i804. 

was  argued  upon  the  trial,  if  a  publication  in  the  newspaper  — 

^  '  '  .    Common- 

may  be  a  breach,  and  upon  such  a  breach  the  whole  recogni-     ^^.^.^it^ 

sance  is  forfeited,  every  justice  of  the  peace  may  indirectly  put  v. 
a  restraint  upon  the  press.  I  certainly  told  the  jury  that  we  had  Davies. 
an  act  of  Assembly  by  which  we  might  prevent  the  injury;  and 
I  was  probably  misled  by  recollecting  that  in  declaring  upon 
such  a  recognisance  I  always  stated  that  it  was  filed  of  record 
in  the  court,  and  so  are  the  forms.  But  I  am  now  persuaded 
from  an  examination  of  the  act  that  I  was  mistaken,  and  that 
the  relief  is  confined  to  forfeitures  in  court.  It  is  to  be  regret- 
ted that  it  is  too  late  to  afford  the  parties  anew  trial.  The  rclief 
at  present  lies  only  with  the  executive.  The  opinion  of  the  court 
is  that  the  petitions  must  be  dismissed. 

Smith  J.  I  do  not  go  merely  by  recollection  in  stating  that  I 
did  say  upon  the  trial  I  had  doubts  as  to  its  not  being  a  restraint 
upon  the  press;  and  then  the  Chief  Justice  said  we  had  power 
by  the  act  to  prevent  injury.  It  was  clearly  a  mistake,  for  the 
act  does  not  extend  to  such  a  forfeiture. 

Per  CuRiAiM.  Petitions  dismissed. 


\^ 


it« 


ftv-iwS  Albert V  «y«i;ii-?  Da  vvsoN.  Wednesdm, 


•••"'J??,  '  ^  SciMembcr 

'rj5  \4«  In  Error. 


96    ♦»» 


TH  IS  was  a  certiorari  to  the  Common  Pleas  of  Philadelphia  a  justice  ot" 
county.  The  causi-  originated  before  a  justice  of  the  pc^ce,|.^^^|^"^^    . 
who  gave  judgment  for  Dawson  the  plaintiff  below,  upon  a  jud^-iTicnt 
warrant   of  attorney,  without  issuing  either  summons  or  t'l- "/j',','",,j'.^,^^j" 
pias.  This  judgment  was  aflirmed  in  the  Common  Pleas,  and  i'<). He  must 
upon  the   removal  to  this  court  the  proceeding  without  sum-  [[.a*,*.^,^,\  \^ 

mons  or  capias  was  assigned  for  error.  the  nature  ni 

a  sunuiioiis 
or  capias. 
M.  l.rvTi  for  the  plninriff  in  error,  cited  the  act  of  April  lOlh, 

1  704,  which  follows  the  act  oi  March  1st,  1745.  sec.  1.  empow- 
ering justices  "  upon  complaint  made  to  them  for  a  debt  or  de- 
"  mand  to  issue  a  warrant  in  the  nature  of  a  summons  or  ra- 
Voj.  J.  O 


106 


CASES  IN  THE  SUPREME  COURT 


1804.      *'  pias  as  the  case  may  require;"  but  it  gives  them  no  authority 
A  ,  „^,.  ,.„  to  take  jurisdiction  in  any  other  way.  (d) 


Dawson. 


Ross  contra,  said  that  the  section  did  not  contain  negative 
words,  and  that  if  the  justict  had  jurisdiction  of  the  amount, 
a  warrant  of  attorney  from  the  party  waived  the  benefit  of  the 
ordinary  proceeding.  Though  consent  cannot  give  jurisdiction 
it  may  waive  process. 


Shippen  C.  J.  A  limited  authoritj-,  such  as  is  given  to  jus- 
tices of  the  peace,  must  be  strictly  pursued.  They  cannot  inter- 
fere officially  in  a  civil  controversy  without  pursuing  the  steps 
pointed  out  by  the  act. 

Smith  J.  It  has  always  been  held  that  if  the  proceeding  was 
neither  by  summons  nor  capias,  it  was  irregular. 

Per  Curiam.  Judgment  reversed, 

(fl)   Vidt  Act  April  9th,  ,1807.  M.  8.  8  St.  Laivs  ISO. 


SuMMERiL  against  Elder. 


lb 

106 

24 

525 

26 

89 

53 

3a8 

Wednesday., 
Scpi  ember 
I2tli 

indcbicfl  to   HT^HIS  was  an  action  of  replevin  for  two  hogsheads  of  coffee, 

his  principal   A    jj^  Avhich  the  defendant  claimed  property.   It  was  tried  at 

Ships  pro-  1       1        - 

prrty  to  him  Nisi    Prius  in  February  1804,    before   Shippen  C.  J.    and 

on  boaid  a  Smith  T.  when  a  verdict  was  found  for  the  defendant,  subject 
vcssfl  be-  .  .  ,  .        , 

l.mijin}^  to  a  to  the  Opinion  of  the  court  upon  a  case  which  was  in  substance 

third  person,  ji^jg.  £).ixvsoji  and  Watt,  merchants  at  Cape  Francois,  were  the 

(although  .         .      .  „  -111 

boundtoron- common  agent  of  plamtifF  and  defendant,  and  were  indebted  to 

furm  10  the   j^q^]^  ^^  ^j^^.  jj,^^^.  hereafter  mentioned,  for  the  proceeds  of  sun- 
agent  s  or-  _  '  _    ' 
ders)  and      dry  cargoes  consigned  to  them.  B.  F.  Garriguea  the  owner  of 

the  captain    ^^^  ^-     y^^/-^  addressed  her  in  the  latter  part  of  1 801  to  D.  &  W. 

signs  a  bill  ...  .  . 

of  lading  de- with  a  direction  to  the  captain  to  conform  in  all  respects  to  their 

livtrable  to  oj-jgrs.  On  the  23d  Jan.  1802,  D.  &  W.  wrote  to  the  defendant 
the  pnnci-  •^  ' 

pal,  the  pro-  as  follows:  "This  goes  by  way  of  Baltimore  and  is  merely  to 
upon  ves^t^in"  '"^"'"'^^  V^^  t"^t  ^^^^  shall  ship  for  your  account  on  board  the 
the  phnci-     "  brig  Julia.,  Samuel  Holt  master,  sailing  for  your  port  on  or 

Sgen7c'innot"^'^°"'^  ^^^  '^^^  ^^'^^  month  the  quantity  of  7000  lbs.  coffee 
counter- 
mand or  disturb  the  sliipment. 


OF  PENNSYLVANIA.  107 

••'or  thereabouts.*  By  her  we  shall  write  you  more  fully,  and      1804. 
"  remain  your  assured  friends  D,  and  ^F.*  It  being  your  pro-  c  ~  ^  T 

''portion  of  the  balance  of  xhe  brig  Agnes'  cargo.  D.  and  /F."  ^.. 
On  the  31st  January  1802,  the  captain  having  taken  on  board  Eloer. 
his  cargo  for  Philadelphia^  signed  bills  of  lading  for  eight  hogs- 
heads and  nine  barrels  of  coffee  marked  T  E,  deliverable  to 
the  defendant  or  his  assigns,  one  of  which  bills  D.  and  W.  left 
with  the  captain  together  with  letters  for  the  consignees.  The 
brig  was  detained  until  the  4th  of  February  when  Cape  Fran- 
cois was  burned  by  the  blacks,  and  property  to  a  great  amount 
in  the  stores  of  Z>.  and  W.  destroyed.  On  the  10th  February 
D.  and  IV.  prevailed  upon  the  captain  to  deliver  up  the  bills  of 
lading  and  letters;  and  with  a  view  to  equalize  the  loss  among 
their  different  employers,  took  two  hogsheads  from  the  quantity 
sh.ipped  for  the  defendant,  and  addressed  them  to  the  plaintiff, 
presenting  at  the  same  time  bills  for  the  signatiu'e  of  the  cap- 
tain, varied  accordingly  from  the  former  bills.  The  captain  at 
lirst  refused  to  sign,  as  an  alteration  had  been  made  in  the 
quantity  shipped  to  his  owner,  but  was  compelled  to  it  by  the 
assurance  of  D.  and  W.  that  until  it  was  done  the  brig  should 
not  sail.  From  the  31st  January  to  the  10th  February  the  ves- 
el  remained  in  the  harbour  under  her  first  bills  of  lading,  her 
bulk  never  broken,  nor  the  marks  of  the  hogsheads  or  barrels  in 
any  way  altci-ed.  On  the  4th  of  March  after  an  embargtj  the  brig- 
sailed,  and  on  her  arrival,  the  captain  being  informed  by  the 
defendant  that  according  to  a  letter  from  J),  and  JV.  the  quan- 
tity due  by  the  bill  of  lading  last  signed  fell  short  of  the  amount 
shij)ped,  by  two  hogsheads,  put  the  property  in  question  on 
■hore,  when  the  defendant  got  possession.  The  plaintiff  entered 
and  secured  the  duties  upon  them,  and  then  brought  the  pre- 
sent action. 

Upon  these  facts  jJ.  I.ivy  for  the  plaintiff  argued  that  the 
common  factor  of  both  parties  had  a  right  to  alter  the  destina- 
tion in  this  case;  that  the  captain  wae^  the  agent  of  Dtau.soti  and 
Watt  since  he  was  tied  down  in  all  respects  to  their  orders;  and 
that  the  delivery  of  the  projK-rty  and  bill  of  lading  to  him  was 
a  revocable  act,  since  it  might  be  considered  as  a  delivery  to 
iiemselvcs;  and  that  the  most  to  which  the  letter  and  first  bill 
of  lading  amounted,  was  a  promise  of  a  bill  of  lading,  which 
however  it  might  affect  the  contracting  parties,  passed  no  pm 


V. 

Elder. 


108  CASES  IN  THE  SUPREME  COURT 

1804.      perty.  Thr  interft-rence  by  the  agents  was  to, equalize  a  severe 
n  ^        loss  among  many,  before  the  means  of  so  doing  had  gone  out  of 

oUMMKHIL    ,      .      I 

their  hands. 

JRaiv/e  for  the  defendant  answered  that  the  coffee  was  shipped 
from  the  funds  of  Elder  in  the  hands  of  Dawson  and  Watt,  that 
,the  property  vest-.d  by  the  delivery  to  the  captain,  that  it  was 
at  the  defendant's  risk  from  the  31st  Januarij  to  the  10th  Fe- 
brvaru^  and  that  the  interference  of  DarvsoJi  and  Watt  was  to 
make  Eider  contribute  to  SummcriP.^  loss,  which  they  had  no 
right  to  do.  A  bill  of  lading  clearly  vests  the  property  in  him 
in  whose  favour  it  is  made  and  for  whose  use  it  is  delivered, 
Evans  v.  Marietta  {a)  and  the  captain  became  the  agent  of  El- 
der as  to  this  property  the  moment  the  bill  was  delivered.  How 
then  could  the  general  agents  of  Elder  devest  the  property? 
They  could  do  it  only  in  the  character  of  agents,  or  under  the 
common  power  of  stopping  in  transitu.  As  agents  their  autho- 
rity was  supplanted  b}-  that  of  another  agent  upon  the  delivery 
of  the  bill  of  lading.  As  to  stopping  in  transitu  this  case  never 
occurs  but  as  between  vendor  and  vendee,  and  as  between  them 
the  vendor  can  stop  in  transitu  only  when  the  vendee  has  become 
bankrupt,  or  when  no  consideration  has  passed  from  the  ven- 
dee to  him.  Snee  v.  Prescott^  (J>)  Wright  et  al.  v.  Campbell^  (c) 
Lickbarrovj  v.  Mason^  (d)  Ellis  and  others  v.  Hunty  (e)  Kinloch 
v.  Craigy  {/)  Sxveet  v.  Pym,  (_§-)  Alderson  v.  Temple,  (^li) 

Levy  in  reply  said  that  none  of  the  cases  cited  came  up  to 
this,  uhich  was  a  delivery  to  the  factor's  own  shipj  and  that  al- 
though a  bill  of  lading  did  usually  vest  the  property,  yet  for 
the  sake  of  doing  complete  justice  it  was  construed  otherwise  in 
the  case  of  stopping  in  transitu.  Justice  here  very  clearly  sup- 
ported the  plaintifl's  claim. 

Shippen  C.  J.  Even  granting  that  the  parties  in  this  case 
have  equal  equity,  still  he  that  has  the  law  must  prevail.  Now 
there  can  be  nothing  more  clear  than  that  upon  the  delivery  of 
the  bill  of  lading  to  the  captain  upon  the  31st  of  January^  the 

Ca)  1  L.  Ray.  271.  (d)  2D.tJ'£.  63.  (g)  1  East  4. 

{b)  1  Atk.  245.  (e)  3  D.  if£.  466.  (/,)  4  IJurr.  2239. 

(c)  4  £urr.  2046.  (/)  3  I).  iS"  E.  119. 


OF  PENNSYLVANIA.  10?? 

property  vested  in  the  defendant,  it  continued  at  his  risk  from      j  304. 
that  time  to  the  10th  February^  and  had  it  been  lost  he  and  ^^^^  sTJ^mmwRTj 
Daivson  and  Watt  would  have  been  the  sufferers.  After  having         -v. 
30  vested,  there  was  no  authoritv  in  the  agents  to  change  the    Elder.. 
rights  of  the  parties.  The  opinion  of  the  court  is  that  there 
jTiust  be 

Judgment  for  defendant. 


WoGLAM  and  another  against  Burnes  and  Adams.   T/iursd<n, 

Sci'lciiiber 
....  ^■''•'' 

'TT^HE  matters  in  variance  in  this  cause  between  the  parties  Paitot  a  rc- 
-*-    were  referrc-d  under  a  rule  of  court;  and  at  the  last  term?"'*  ^^^^' 

ierces  niav 

the  referees  reported  that  there  was  due  from  Buriics  to  the  b.-  cmfi.  m- 

plaintiffs   11/.  and  from  Burnes  and  Adams  to  the  plaintiffs  ^'''^,'''^  ^''? 
'  *  residue  set 

31/.  5*.  7d.  aMc.  But 

tlio  court 

canncit  strike 

Ross  for  the  plaintiffs  moved  to  set  the  report  aside,  as  from  out  apart. 

the  face  of  it  the  referees  had  decided  matters  not  submitted  to 

them,  finding  a   sum  due  to   the   plaintiffs  from  one   of  the 

defendants. 

Frazer  for  the  defendants  replied  that  the  part  of  the  award 
objected  to  was  surplusage;  that  there  was  a  perfect  finding 
between  the  parties  in  this  suit,  and  that  the  court  might  strike 
out  the  objectionable  part. 

Shippen  C.  J.  The  court  cannot  strike  oat  part  of  an  award, 
but  they  can  confirm  a  part  and  set  aside  the  residue,  which  in 
this  case  will  have  the  same  effect.  That  jjart  of  the  report 
which  relates  to  Burnes  alone  must  therefore  be  set  aside,  and 
judgment  be  entered  for  the  joint  debt. 

Jutlgmenl  accordingly. 


110  CASES  IN  THE  SUPREME  COURT 

18W. 


'piursday,  MiTCHELL  aO-ahlSt  SmITH. 

September  " 


lb  110; 

2s  1 196 

4sflB9 

4s. 17a 

Hst2'24 

Hsr26A 

6VI/233 

7wl64 

7w296 

Iw3l83l 

7ws234| 

3g    37 


13th. 


In  Error. 


7 

338 

IK 

51 

'iH 

138 

45 

23(i 

65 

505 

72 

4G7 

73 

201 

80 

28 

A  contract  f  |'*HIS  was  a  writ  of  error  to  the  Common  Pleas  oi  Luzerne 
rliase  and  coiintj',   and   the   record  presented  the   following   case, 

sale  of  lands  ^;„,Y/j^  the  plaintiff  below,  brought  an  action  of  debt  against 
vania  under  Mitchell  upon  a  sealed  note  for  483  dolls.  33  cts.  dated  the 
;lie  Connec-  jjth  March  1796  and  payable  to  Smith  or  order  at  the  expira- 

'  icut  title  is  .  . 

unlawful  and  tion  of  three  years  from  the  date  with  lawful  interest.  The  de- 
void, al-  fendant  pleaded  payment  with  leave  to  give  the  special  matter 
act  of  Uth    ii^  evidence.   Upon  the  trial  of  the  cause  before  President  Rush 

April  1795,    qj^  ^he  23d  April  1 802  it  was  in  evidence  that  the  note  was  given 

neither  ex-  .  „ 

])ressly  says  for  land  near  Frenchtown  m  Luzerne^  and  out  ot  the  seventeen 

so,  nor  con-  townships,  which  land  had  been  granted  to  the  plaintilT  by  the 
tains  any  .  r    i       o  i  i  i 

prohibitory    committee  oi  the  Susquehanna  company  agreeably  to  a  resolve 

clause,  but    ^f  ^|^g  company.  That  the  plaintiff  by  deed  bearing  even  date 

merely  ui- 

Jlicts  a  pe-     with  the  note  conveyed  this  land  to  the  defendant.  That  the 

iialty  upon     plaintiff  and  defendant  went  together  to  view  the  land  before  the 

ihe  oncndcr.  i  ° 

Such  a  pe-    execution  of  the  note  or  deed,  and  that  upon  the  completion  of 

nalty  implies  ^i^g  contract  the  defendant  was  put  in  peaceable  possession  of 

.1  prohibi-  .  '         ,      '  ' 

ion.  the  land  and  had  so  continued  ever  since.  Tiiat  the  defendant 

at  the  time  of  the  contract  had  full  knowledge  of  the  law  against 
intrusions  in  Luzerne  county,  and  of  the  general  dispute  relative 
to  titles  in  the  county. 

Upon  these  facts  and  the  act  of  11th  April  1795  the  counsel 
for  the  defendant  insisted  that  he  was  entitled  to  a  verdict  for 
the  following  reasons:  First,  because  the  consideration  upon 
which  the  note  was  given  was  illegal,  and  therefore  the  note  was 
void.  Secondly,  because  the  transaction  on  which  the  contract 
originated  was  against  the  general  policy  of  the  law,  and  there- 
fore should  not  be  carried  into  effect.  Thirdly,  because  the  con- 
sideration on  which  the  note  was  given  had  failed.  His  Honour 
in  delivering  the  charge  of  the  court  stated  their  opinion  upon 
the  several  matters  of  law  against  the  defendant,  and  told  the 
jury  that  if  they  were  of  opinion  the  defendant  knew  and  was 
acquainted  with  every  material  circumstance  relative  to  the 
i)argain,  it  was  their  dutv  to  make  him  pay  the  money  with  the 


OF  PENNSYLVANIA.  11] 

interest  thereon;  but  if  thev  were  of  opinion  he  was  in  any  de-      1804. 
gree  imposed  upon  or  purchased  ignorantlv,  in  that  case  they  77 
ought  to  find  a  verdict  in  his  favour.  The  jury  found  for  the         x.. 
plaintiff.  Smith. 

To  this  charge  a  bill  of  exceptions  was  tendered  and  sealed, 
and  the  record  removed  to  this  court. 

The  act  of  assembly  in  question  enacts,  section  1st,  "  That 
"  if  anv  person  shall  after  the  passing  of  this  act  take  pos- 
"  session  of  enter  intrude  or  settle  on  any  lands  within  the 
*'  limits  of  the  counties  of  Northampton^  Northumberland,  or 
"  Luzerne,  by  virtue  or  under  colour  of  any  conveyance  of 
*'  half  share  right  or  anv  other  pretended  title  not  derived 
"  from  the  authoritv  of  this  commonwealth  or  of  the  late  pro- 
*'  prietaries  of  Pcnnsyhonia  before  the  revolution,  such  per- 
"  son,  upon  being  duly  convicted  thereof  upon  indictment  in 
"  any  court  of  oyer  and  terminer,  or  court  of  general  quar- 
"  ter  sessions  to  be  held  in  the  proper  county,  shall  forfeit  and 
'^  pay  the  sum  of  two  hundred  dollars,  one  half  to  the  use  of  the 
'•'  countv,  and  the  other  half  to  the  use  of  the  informer;  and  shall 
"  also  be  subject  to  such  imprisonment  not  exceeding  twelve 
"  months,  as  the  court  before  whom  such  conviction  is  had  may 
"  in  their  discretion  direct."  The  second  section  enacts, "  Tliat 
"  ever)'  person  who  shall  combine  or  conspire  for  the  purpose 
"  of  conveving  possessing  or  settling  on  any  lands  within  the 
"  limits  aforesaid  under  any  half  share  rjght  or  pretended  title 
"  as  aforesaid  8cc.  shall  for  every  such  offence  forfeit  a  sum  not 
"  less  than  five  hundred  nor  more  than  one  thousand  dollars, 
*'  one  half  to  the  use  of  the  county,  and  the  other  half  to  the  use 
"  of  the  informer;  and  shall  also  be  subject  to  such  imprison- 
"  ment  at  hard  labour  not  excc(  ding  eighteen  months  as  the 
"  court  in  their  discietion  may  direct."  3  St.  La7v.s  703. 

The  cause  was  argued  in  March  and  September  terms  1803 
by  IV.  Titghn\an  and  iM'-Kean  (attorne}'  general)  for  the  plaintiff 
in  error,  and  by  Rawle  lor  the  defendant  in  error. 

For  the  plaiiuiff  in  error  it  was  contended  tliat  the  transaction 

on  which  the  debt  arose  was  forbidden  I)y  the  law  of  this  state, 

ind  llierefore  that  no  court  of  this  commonwealth  would  sustain 

.w\  action  for  carrying  it  into  effect.  The  act  of  1 1th  April  1 79.) 

imposes  a  penalty  of  fine  and  imprisonment  upon  persons  who. 


112  CASKS  IN  Till':  SUPREME  COURT 

1804.      iinclcr  colour  of  a  conveyance  of  half  share  rights,  intrude  and 
,  J  ^      settle  upon  lands  in  Lvzcrne  out  of  the  seventeen  townships,  or 

,,.  who  combine  or  conspire  ior  the  purpose  of  conveying  posscss- 
Smith.  ing  or  settling  them.  The  lands  sold  by  Smith  are  of  this  de- 
scription; the  conveyance  and  the  possession  were  confessedly 
under  colour  of  a  half  share  right;  and  the  naked  question  is 
whether  the  contract  having  this  effect  in  view  is  not  absolutely 
void  in  all  its  parts.  Such  a  contract  violates  the  principles  of 
morahty  and  decency,  by  producing  a  contempt  for  the  laws  of 
the  country,  and  thereby  creating  habits  of  disobedience  and 
licentiousness;  it  opposes  the  principles  of  sound  policy,  by 
nourishing  a  spirit  of  hostility  to  the  rights  of  this  state  over  a 
portion  of  her  territory  solemnly  adjudged  to  be  hers  by  the 
decree  at  Trenton^  and  which  she  has  endeavoured  to  defend 
by  a  great  variety  of  laws;  and  it  tends  to  contradict  or  evade 
the  particular  law  in  question,  a  law  of  extensive  and  important 
concern.  Under  each  of  these  points  of  view  the  contract  is 
void. 

1.  The  common  law  prohibits  every  thing  contra  bonos 
mores.  Jones  v.  Randall,  (a)  It  was  upon  this  principle  that  a 
wager  as  to  the  sex  of  the  chevalier  d^Eon  was  held  to  be  void 
in  Dacosta  v.  Jones;  (F)  and  so  of  a  bond  given  to  a  woman  to 
live  in  a  state  of  concubinage,  in  Walker  v.  Perkins,  (c)  Courts 
of  justice  should  be  preserved  in  perfect  purity,  and  should 
refuse  all  countenance  and  support  to  transactions  of  this  kind. 

2.  In  like  manner  all  contracts  militating  against  the  general 
policy  of  the  laws,  are  prohibited  and  void.  For  this  reason  a 
wager  between  two  voters  with  respect  to  the  event  of  an  elec- 
tion before  the  poll  begins  is  illegal,  and  no  action  can  be  sus- 
tained upon  it.  Allen  v.  Hearn.  (d)  So  marriage  brocage  bonds 
are  void;  and  the  courts  set  them  aside  not  for  the  party's  sake, 
but  for  the  benefit  of  the  public.  Debenham  v.  Ox.  {e)  It  is 
the  same  with  all  contracts  in  restraint  of  marriage.  Loxoe  v. 
Peers.  (/")  A  promise  to  indemnify  a  gaoler  for  letting  a  prisoner 
escape  is  void,  because  the  consideration  is  against  law;  Martin 
v.  Blithman;  (^)  and  so  are  general  restraints  on  the  exercise 

(rt)  Covip.  39.  (e)  1  Vez.  276. 

ib)  Cmi'p.  729.  (/)  4  Burr.  2230. 

(c)  3  Burr.  1568.  f^;)  Teh.  197 
{(1)  ID.iS'E.  56 


OF  PENNSYLVANIA.  115 

of  a  trade,  whether  bv  bond  covenant  or  promise,  with  or  with-      1 804. 
out  consideration;  'they  are  a  public  mischief.  Mitchell \.  -^^J/- Mitchell 
?iolds.  (a)  It  is  not  necessary  that  to  make  the  contract  void  it         v. 
should  be  against  the  policy  of  the  common  law;  it  is  equally     Smith. 
illegal  if  it  violates  the  policy  of  statutes.  A  promise  made  by 
the  friend  of  a  bankrupt  to  pay  money  in  consideration  that  the 
assignees  and  commissioners  would  forbear  to  examine  him  on 
certain  points,  is  void  as  being  against  the  policy  of  the  bankrupt 
laws,  Nerot  v.  Wallace;  {h)  and  where  an  English  subject  in 
Guernsey  sells  goods,  knowing  it  to  be  the  buyer's  intention  to 
smuggle  them  into  England^  he  cannot  maintain  an  action  in 
Enq-land  for  the  price;  it  is  against  the  policy  of  the  revenue 
laws,  as  well  as  immoral.  Clugas  v.  Penuluna.  (c)  And  even  if 
a  foreigner,  not  subject  to  the  English  laws,  sells  goods  with  a 
knowledge  that  thevare  to  be  smuggled  into£;2,§  /anfl^,and  assists 
in  the  transaction  by  packing  them  in  a  convenient  way  for 
smuggling,  no  court  in  England  will  sustain  an  action  for  the 
price.  JVaymell  v.  Reed,  (d) 

5.  But  it  would  be  sufficient  if  the  case  stood  merely  upon 
the  ground  of  its  being  a  contract  to  do  a  thing  which  is  made 
unlawful  by  act  of  Assembly.  It  is  true  that  the  act  does  not  say 
that  contracts  to  give  possession  of  land  under  half  share  rights, 
or  for  the  convevance  or  purchase  of  them,  shall  be  void;  there 
was  no  necessity  for  it.  It  prohibits  the  possession  and  the  com- 
bination to  convey,  and  inflicts  a  severe  penalty  upon  the  offend- 
ers, and  that  is  enough.  "  Every  contract"  says  chief  justice 
Holt  "■  made  for  or  about  any  matter  or  thing  which  is  prohibit- 
"  ed  and  made  unlawful  by  any  statute,  is  a  void  contract, 
"  thougli  the  statute  itself  doth  not  mention  that  it  shall  be  so, 
*'  but  only  inflicts  a  penalty  on  the  offender;  because  a  penalty 
"  implies  a  prohihition^  though  there  are  no  prohibitory  wo^ds 
"  in  the  statute."  Bartlctt  v.  Vinor.  {e)  The  consideration  is  ille- 
gal, and  the  assumpsit  or  obligation  void.  Allen  v.  Retscoiis  (f)y 
Sidlivon  v.  Greaves  (g),  Mitchell  v.  Cockburne  (Ji)^  Stackpolc  v. 
Earle  (  i),  Baker  v.  Roger;.  (^). 

(rt)  1  /-■.  Wms.  192.  (./")  2  i-r-r   174 

{b)ZD.'<:XE.  17.  {g)  P.iriS. 

(c)  4  D.iJf  E.  1G6.  (/.)  2  H.  Bl.  379. 

(f/)  S  D.iJf  E.  599.  (/■)  2  Wilt.  133. 

(e)  Carth.  S52.  f /•)  Cro.  JiHe.  78P 

VOT.I.  P 


114  CASES  IN  THE  SUPREME  COURT 

1804.  For  the  deftndant  in  error  it  was  argued,  that  since  the  note 

MiTc    Fi    ^"  question  was  given  under  a  lull  knowledge  oi  the  circumstan- 

■u,         CCS  without  a  suggestion  ol  fraud,  he  should  be  made  to  pay  it; 

Smith,    for  it  is  good  at  common  law, and  a  good  consideration  was  given 

for.it;  it  is  not  against  the  policy  ol  the  laws;  and  it  is  not  void 

under  the  act  of  1 1th  April  1 795. 

1.  It  is  good  at  common  law.  The  mere  occupancy  of  the  land 
was  a  beneficial  interest,  and  the  sale  of  a  possession  was  always 
valid.  It  does  not  appear  that  there  is  in  any  person  a  title  to 
this  land  derived  from  this  state;  it  must  therefore  be  taken  to 
be  such  as  Smith  might  lawfully  enter  to  settle  and  improve, 
those  being  the  only  terms  upon  which  land  is  granted  by  this 
state  since  the  act  of  22d  September  1794.  The  possession  was 
a  good  consideration  for  the  note ;  and  if  Smith  had  not  even  a 
colour  of  title,  and  the  deed  passed  nothing,  still  the  sale  passed 
an  interest  against  every  one  but  the  commonwealth  and  claim- 
ants under  her;  no  third  person  could  eject  Mitchell^  and  he 
might  maintain  trespass.  Bull.  N.  P.  85.  93. 

2.  It  does  not  oppose  the  policy  of  the  laws.  This  is  always 
a  delicate  question  for  courts;  to  a  certain  extent  the  decision 
involves  matters  not  strictly  within  their  province.  But  at  all 
events  the  application  of  the  principle  should  be  very  plain;  and 
there  is  no  case  in  which  it  could  be  less  so  than  in  this.  It  is 
impossible  to  say  what  the  policy  of  this  state  has  been  in  this 
particular.  It  has  assumed  every  shape.  At  times  the  laws  have 
been  gentle,  at  other  times  severe;  in  some  instances  persuasive, 
in  others  menacing;  and  from  a  desire  to  promote  settlement 
and  emigration,  at  the  same  moment  that  it  has  supported  its 
pretensions  to  the  territory  in  question,  the  legislature  has  left  it 
in  doubt  which  was  the  oI)ject  most  at  heart,  and  of  course 
whether  the  policy  of  the  laws  was  most  evident  to  encourage 
population,  or  to  destroy  the  Connecticut  tide.  If  settlement  and 
population  be  the  policy,  the  present  contract  favoured  them. 

3.  The  contract  is  not  void  under  the  intrusion  law.  The  act 
contains  no  prohibitory  words,  nor  does  it  declare  the  contract 
to  be  void;  and  it  may  be  laid  down  as  a  safe  principle  that 
where  a  statute  imposes  a  penalty  upon  doing  an  act  which  is 
not  an  offence  at  common  law,  and  contains  no  general  prohibi- 
tory clause,  a  contract  relative  to  the  subject  of  it  is  not  void, 
though  the  parties  may  be  subject  to  the  penalty.  The  general 
rule  i&  that  a  penal  statute  should  be  srictly  construed;  and  if 


OF  PENNSYLVANIA.  ^15 

the  statute  in  creating  a  new  offence  specifies  particular  reme-      igo4. 

dies  without  containing  a  general  prohibitory  clause,  this  strict  73^ 

construction  is  applied  not  only  to  the  character  of  the  offence         ^^ 
but  to  the  mode  of  punishment.  Castle's  case  (a),  King'  v.  Mar-    Smith." 
riott  (b),  King  v.  Wright   (cj,  King  v.  Balnie  {d)^  Hartley  v. 
Hooker,  (e)  Now  avoiding  the  contract  is  surely  a  mode  of 
punishment,  a  punishment  of  the  severest  nature  because  the 
offender  does  not  read  it  in  the  law.  But  consider  the  avoid- 
ance of  the  contract  not  as  a  mode  of  punishment,  but  as  a  mere 
effect  of  the  law,  still  it  is  a  violation  of  this  principle  of  strict 
construction. 

The  Stat.  16  Car.  2.  made  contracts  for  money  won  at  play 
void;  the  stat.  9  Arme  says  that  bills  notes  &c.  for  money  won 
or  lent  at  play  shall  be  void;  but  as  it  does  not  say  that  contracts 
for  money  lent  at  play  shall  be  void,  such  a  contract  was  support- 
ed in  Robinson  v.  Bland,  (^f)  So  a  bond  to  reimburse  a  person 
who  has  paid  a  difference  upon  a  stock  contract  is  good,  although 
7  G.  2.  c.  8.  imposes  the  penalty  of  100/.  upon  paying  such  dif- 
ferences. Faikneij  v.  Reynous  Q^"),  Petrie  v.  Hannay  (Ji)^  IVet- 
tenhallx.  Wood  (i),  Burjrar  v.  Walmsley  (k').  The  cases  cited 
on  the  other  side  do  not  apply;  they  are  cases  of  offences  at 
common  law,  or  under  statutes  making  void  the  contracts  or 
containing  prohibitory  words.  Baker  v.  Rogers  is  the  case  of 
simony,  which  Lord  Coke  says  is  odious  to  the  common  law. 
3  In.st.  5Cy.  4  Bac.  465.  Stackpole  v.  Earle  was  a  bargain  ex- 
pressly made  void  by  5  and  6  Edxu.  6.  Sullivan  v.  Greaves  and 
Mitchell  V.  Cockbnrne  were  under  6  G.  1.  c.  18.  which  declares 
such  contracts  to  be  ipso  facto  void.  The  only  case  remaining 
is  Burtlett  v.  Viyior  containing  Lord  Holt's  diction;  but  it  was 
in  a  case  of  simony  and  should  be  confined  to  it.  The  revenue 
cases  may  be  considered  as  of  the  same  nature.  The  customs 
are  of  great  antiquity,  a  branch  of  the  royal  revenue,  and  there- 
fore smuggling  may  be  an  offence  at  common  law  and  against 
the  constitution;  the  English  courts  have  however  in  cases  affect- 
ing the  revrnue  strained  the  Jaw  to  its  utmost  limit.    The  act 

(a)  Cro.  Jac.  644-  (/)  'J  Bun-  1081 . 

U)l  S/urjj  398.  nnte  {t>'j  (^)  4  Burr.  2U69. 
(c)  1  Burr.  544.  (A)  3  IJ.  Isf  E.  418. 

(f/)C,/w/>.  650.  («■)  1  ij/..  18. 

ff)  Cir.vp.  .524.  f  k)  3  Sfra.  1249. 


1 16  CXSES  IN  THE  S^UFREME  COURT 

1 804.      of  6th  April  1 802,  which  makes  this  kind  of  contract  void,  shews 
Tl  that  it  was  not  so  before.   5  St.  Laws  198. 

31ITCHEI.L  -,  ,  , 

Cia:  adv.  viilt. 


V. 

Smith. 


On  this  day  the  judges  delivered  their  opinions. 

SniPPEN  C.  J.  This  is  a  writ  of  error  to  reverse  a  judgment 
rendered  in  the  court  of  Common  Pleas  for  the  county  of 
Luzerne,  in  an  action  brought  on  a  bill  obligatory  for  the  sum 
of  four  hundred  and  eighty  three  dollars  and  thirty  three  cents; 
to  which  the  defendant  pleaded  payment,  with  leave  to  give 
special  matters,  in  evidence. 

It  appears  on  the  record  that  the  consideration  for  this  bill 
was  a  tract  of  land  conveyed  by  the  plaintiff  to  the  defendant, 
lying  without  the  seventeen  townships,  in  the  county  oi  Lu- 
zerne,  and  held  by  him  under  a  deed  from  a  committee  of  the 
StisqiK  hanna  company,  under  the  Connecticut  title,  and  not 
derived  from  the  authority  of  this  commonwealth,  or  of  the 
late  proprietaries  of  Pennsylvania  before  the  revolution.  The 
principal  question  in  the  case  is  whether  this  be  a  legal  or  illegal 
consideration  for  the  bill,  and  whether  the  contract  for  the  sale 
and  purchase  of  this  land  is  a  violation  of  the  laws  of  this  com- 
monwealth, so  tainting  the  whole  transaction,  as  that  this  court 
cannot  legally  afford  their  aid  to  carry  the  contract  into  exe- 
cution. 

The  mischiefs  intended  to  be  i-emedied  by  the  act  of  11th 
April  ir95,  were  of  a  grievous  nature.  A  warfare  had  been 
carried  on  between  the  claimants  of  land  under  the  title  of 
Connecticut,  and  the  claimants  under  Pennsylvania  for  many 
years,  and  many  lives  had  been  lost  in  the  contest.  It  was  at 
length  found  necessary  for  congress  to  interpose.  They  thought 
fit  to  appoint  judges  or  commissioners  to  decide  upon  the  claims 
of  the  respective  states,  who  after  a  full  and  solemn  hearing 
made  their  decree  at  Trenton,  establishing  the  right  of  govern- 
ment over  the  country  in  question  to  be  in  Pennsylvania,  but 
without  deciding  the  particular  tides  of  individuals  claiming 
the  right  of  soil.  Notwithstanding  this  decree,  not  only  the  old 
setile/s  under  the  title  of  Connecticut  retained  their  possessions, 
but  a  great  number  of  new  persons  under  the  same  pretended 
title  intruded  into  this  part  of  Pennsylvania,  and  possessed 
themselves  of,  and  settled,  such  vacant  lands  as  they  chcse. 


OF  PENNSYLVAMA.  117 

The   legislature  of  Pemisi/lvania   passed   repeated   acts  of     1804. 

Assemblv  to  remedy  the  evils  consequent  upon  such  intru-T^J 

-    .  .  1  ••II-       Mitchell 

sions,  some  of  them  with  a  view  to  compromise  with  the  first         -y, 

settlers.  All  however  proved  ineffectual  to  prevent  new  illegal  Smit«. 
settlements.  At  length  the  act  in  question  was  passed,  called 
the  Intrusion  Law.  This  act  is  of  a  public  nature,  and  intended 
to  remedy  a  public  evil.  The  point  relied  upon  by  the  plaintiff 
is  that  the  land  sold  bv  the  plaintiff  and  purchased  by  the 
defendant,  was  fairly  bought  and  sold,  all  the  circumstances 
being  fullv  known  to  both  parties,  and  curried  into  execution  on 
the  part  of  the  defendant,  by  his  taking  possession  and  occupy- 
ing the  land;  and  that  although  die  act  of  Assembly  imposes  a 
penalty  on  the  party  offending,  yet  it  7io  xvhere  invalidates  the 
contract.  On  the  part  of  the  defendant  it  is  contended  that  the 
contract  which  was  the  foundation  of  this  obligation,  having 
been  made  in  violation  of  the  good  policy  and  direct  provisions 
of  the  act  of  Assembly,  this  court  will  not  afford  their  aid  to 
carrv  such  a  contract  into  execution. 

What  then  was  the  contract?  It  ajjpears  to  be  a  contract  for 
selling  and  conveying  a  tract  of  land  which  the  plaintiff  lield 
under  a  deed  from  the  committee  of  the  Su.squelianna  com- 
pany, or  in  other  words  under  a  Connecticut  title.  What  says 
the  law?  "  If  any  person  shall  enter  into  possession  of,  or  shall 
*'  combine  or  conspire  for  the  purpose  of  conveying^  possessing, 
"  or  settling  on  any  lands  y  itliin  the  ascertained  limits,  under 
"  colour  of  any  half  share  riglit  or  pretended  title  not  derived 
"  under  the  government,  he  shall  forfeit,"  Sec.  Is  not  the  actual 
conveying,  possessing,  and  settling  this  land  direct  evidence  of 
combining  for  that  purpose,  and  <jf  course  a  direct  violation  of 
the  law?  Hut  it  is  objected  that  where  a  law  creates  a  new 
offence  and  prescribes  a  specified  mode  of  punishment,  no 
other  mode  can  be  pursued.  This  is  generally  true  where  the 
act  contains  no  prohibitory  clause;  in  which  case  the  conunon 
law  punishment  by  indictment  might  be  inflicted,  although  the 
piuiishment  directed  l)y  the  act  was  bv  bill,  plaint,  or  informa- 
tion. Here  indeed  there  is  no  general  j)rohlbit(jry  clause,  the 
act  directing  only  that  if  any  person  shall  do  so  and  so,  he  shall 
be  punished  so  and  so.  Is  this  however  a  case  involving  a 
double  punishment  by  prosecution?  All  that  is  contended  for 
is  that  the  contract  is  illegal,  being  founded  on  a  breach  of  the 
law,  and  of  consequence  a  void  contract,  and  cannot  be  enforced 


118  CASES  IN  THE  SUPREME  COURT 

1804.  in  a  court  of  law.  And  for  this  purpose  there  cannot  be  a  more 
Mitchell  ^^P^'^^s  authority  than  the  case  in  Carth.  252.  where  Lord 
V.  Chief  Justice  Holt  says,  "  that  every  contract  made  by  or  about 
Smith.  '»  a  matter  or  thing  which  is  prohibited,  and  made  unhiwful  by 
"  any  statute,  is  a  void  contract,  though  the  statute  itself  doth 
*'  not  mention  that  it  shall  be  so,  but  only  inflicts  a  penalty  on 
*'  the  offender;  because  a  penalty  implies  a  prohibition,  though 
"  there  arc  no  ])rohibitory  words  in  the  statute."  This  autho- 
rity, although  perhaps  it  might  not  warrant  a  conclusion  that  a 
penalty  implies  a  prohibition  for  the  purpose  of  making  the 
offence  punishable  by  indictment,  in  case  the  law  had  prescribed 
another  and  a  specific  punishment  for  the  offence,  yet  it  cer- 
tainly 13  an  authority  to  prove  that  a  contract  about  a  matter 
prohibited  by  statute  is  unlawful  and  a  void  contract,  although 
the  act  does  not  expressly  say  so,  and  that  a  penalty  implies  a 
prohibition,  so  as  to  make  the  contract  void.  The  spirit  of  this 
^  law  in  Carthexo  has  been  followed  up  in  numerous  modern 
cases,  particularly  where  goods  have  been  purchased  abroad 
with  an  intent  to  smuggle  them  into  England.  In  these  cases 
the  seller  of  the  goods,  although  a  foreigner  residing  in  a  foreign 
country,  cannot  recover  the  price  of  his  goods  in  England^  if 
he  were  any  way  concerned  in  the  smuggling  transaction;  the 
whole  contract  being  tainted  and  nullified  by  the  illegal  act,  so 
as  to  prevent  the  recovery  of  the  debt  in  the  country  whose 
laws  were  violated. 

I  would  barely  add,  that  if  we  could  enforce  the  payment  of 
the  consideration  money  for  this  land,  we  must  likewise  have 
been  obliged  on  the  other  hand  to  enforce  the  delivery  of  the 
possession,  in  case  the  money  had  been  paid  and  possession 
refused,  which  clearly  would  have  been  a  most  glaring  infrac- 
tion of  the  law;  the  remedies  must  be  mutual  or  not  at  all. 

This  subject  has  been  lately  canvassed  in  this  court,  in  the 
ease  of  Maijbhi  v.  Coulon^  where  we  were  compelled  to  resist 
the  payment  of  an  otherwise  honest  demand,  on  account  of 
its  being  founded  on,  and  connected  with  a  breach  of  the  laws 
of  trade,  in  covering  the  property  of  a  foreigner  by  using  the 
name  of  a  citizen  of  the  United  States^  in  obtaining  the  regis- 
ter of  a  ship. 

For  these  reasons  I  am  of  opinion  the  judgment  below  must 
be  reversed. 


OF  PENNSYLVANIA.  11^ 

Ye  AXES  J.  Whether  this  case  be  considered  on  prbiciple  or      1804. 
precedent^  I  am  of  opinion  that  the  judgment  of  the  Common  " 
Pleas  cannot  be  supported.  ^^ 

Courts  of  justice  sit  to  carry  into  execution  dispassionately  Smith. 
the  general  will  of  the  community  disclosed  by  the  laws.  It 
would  seem  a  solecism  in  jurisprudence  that  a  contract  which 
necessarily  leads  to  defeat  the  provisions  of  an  act  of  the  legis- 
lature, of  the  highest  public  concernment,  should  receive  judi- 
cial sanction  and  support.  The  single  bill  on  which  the  action 
is  founded  is  dated  11th  March  1796,  and  therefore  the  laws  in 
force  at  that  time  only,  can  affect  our  determination.  The  intru- 
sion act  was  passed  on  the  Wxh  April  1795.  [His  Honour  here, 
recited  the  first  two  sections.] 

The  bill  of  exceptions  states  that  a  deed  bearing  equal  date 
with  the  single  bill,  was  executed  by  the  defendant  in  error  to 
the  plaintiff  for  1500  acres  of  land,  in  SniitliJieldio\vnsh\\)  in  the 
county  of  Luzertie^  which  the  former  claimed  by  a  grant  of  the 
committee  of  the  Susquehanna  compan}-,  out  of  the  seventeen 
townships;  that  both  parties  went  together  to  view  the  lands 
previous  to  the  execution  ot  the  bill  or  deed,  and  that  the  plain- 
tiff in  eiTor  was /;?/r  in  possession^  and  continued  therein  since 
the  time  of  the  contract. 

It  is  evident  therefore  that  the  agreement  was  entered  into, 
in  direct  violation  of  the  intrusion  act,  yor  the  purpose  of  con- 
veifin^^  possessing^  and  settling  \\\c  lands  interdicted,  under  a 
half  share  right  or  pretended  title  not  derived  from  the  authority 
of  this  commonwealth,  or  of  the  late  proprietaries.  It  openly 
attacked  the  sovereignty  of  the  state,  over  a  considerable  part 
of  the  lands  clearly  comprised  within  her  chartered  limits. 

In  Booth  ct  al.  v.  Hodgson  et  al.  6  T.  R.  409.  Lord  Chief 
Justice  Kent/on  observes,  that  "  it  is  a  maxim  in  our  law,  that 
"  the  plaintiff  must  shew  that  he  stands  on  a  fair  ground,  when 
"  he  calls  on  a  court  of  justice  to  administer  relief  to  him." 
And  in  faques  v.  IVithey  and  Reidy  1  H.  Bl.  67-  it  is  said  by 
counsel,  and  seemingly  assented  to  by  the  court,  that  "  where  an 
"  action  is  in  affirmance  of  an  illegal  contract,  and  the  oljject  of 
"  it  is  to  enforce  the  performance  of  an  engagement  prohit)ited 
''  by  law,  clearly  such  an  action  was  in  no  case  to  be  main- 
"  tained."  And  Lord  Chief  Justice  Ellcnborough  in  the  late 
case  oi  Edgar  et  al.  v.  Fowler  in  1803,  has  said,  "  We  will  not 
"  assist  an  illegal  transaction  in  any  respect;  wc  leave  the  matter 


120  CASES  IN  THE  SUPREiML  COURT 

1804.      "  as  we  find  it,  unci  then  the  maxim  applies,  mcl'ior  cat  condit'w 
TvT"^       '~  '"'' possidentis.'*''  3  East  225.   A  broad  ciound  is  laid  down  by 
7,  Lord  Chief   Justice  Ho/t  in  Bartlctt  v.  Vinor^  Carh.  252.  in 

Smith,  these  words:  "  Every  contract  made  for  or  about  any  matter  or 
"  thing,  which  is  prohibited  and  made  unlawful  by  any  statute 
"  is  a  void  contract^  though  the  statute  itself  doth  not  7nention 
"  that  it  shall  be  so,,  but  only  inflicts  a  penalty  on  the  offender; 
"  because  vl  penalty  implies  a  prohibitioUn,  though  there  are  no 
"  prohibitory  words  in  the  statute."  If  the  law  is  correctly  laid 
down  in  these  authorities,  i  run  little  hazard  in  asserting  that 
the  suit  of  the  plaintiff  in  the  Common  Pleas  cannot  be  sup- 
ported. 

It  cannot  be  denied  that  contracts  which  violate  the  rules  of 
decency  or  morality,  or  oppose  principles  of  sound  policy  of 
the  country  are  illegal  and  void.  The  cases  cited  on  the  part  of 
the  plaintiff  in  error  fully  prove  the  positions. 

So  also  of  contracts  which  immediately  tend  to  defeat  the  le- 
gislative provisions  for  the  security  and  peace  of  the  community 
though  not  made  void  by  statutes.  Thus  in  Biggs  v.  Lawrencey 
3  T.  R.  454.  a  contract  for  goods  to  be  smuggled  into  England 
was  held  invalid;  and  it  is  there  said  that  one  v/ho  seeks  redress 
in  a  court  of  law  must  not  shew  that  he  broke  the  laws  of  his 
country.  In  Clugas  v.  Penaluna,,  4  T.  R.  466.  it  was  resolved  that 
an  inhabitant  oi  Guernsey  cannot  recover  in  England  for  goods 
sold  there,  if  intended  to  be  smuggled  into  England.  It  was  held 
immoral  to  evade  the  laws  of  the  country,  though  the  act  was 
done  in  Guernsey,,  and  though  the  contract  might  be  legal  in 
Guernsey  and  enforced  there.  In  IVaymellv.  Reed  ct  al.  1  T.  R. 
599.  a  vendor  of  goods  abroad  shall  not  recover  the  value  of 
goods  packed  up  in  order  to  be  smuggled  into  England;  for 
even  foreigners  shall  not  be  allowed  to  subvert  the  revenue 
laws.   In  jyitchell  et  al.  v.  Cockburne,,  2  H.  Bl.  379.,  A.  and  B. 
were  engaged  in  a  partnership  in  insuring  ships  &c.  which  was 
carried  on  in  the  name  of  A.,  and  A.  paid  the  whole  of  the  losses; 
such  a  partnership  being  illegal   by  the   statute  of  6   Geo.  1. 
f.  18.  A.  could  not  maintain  an  action  against  B.  to  recover  a 
share  of  the  money  that  had  been  so  paid;  because  no  contract 
arising  directly  out  of  such  an  illegal  proceeding  could  be  the 
foundation  of  an  action.  In  the  case  before  cited,  Booth  et  al.  v. 
Hodgson^  6  T.  R.  405.  A.  B.  and  C.  became  partners  in  insur- 
ing ships  contrary  to  the  said  statute  of  6  G.  1.  c.  18.  sec.  12. 


OF  PF-NNSYLVANIA.  121 

bm  it  was  agreed  that  the  policies  should  be  vindervmtten  in      1804. 
the  name  of  A.  only.  Several  policies  were  effected,  and  the  j^jTtchell 
premiums  received  bv  C.  and  D.,  and  it  was  held  that  A.  could         v. 
not  recover  against  C.  and  D.   And  in  Camden  v.  Anderson^     Smith- 
6   T.  R.  730.  a  policy  effected  in  contravention  of  a  statute 
made  for  the  purpose  of  protecting  the  monopoly  granted  to  the 
East  India  company  was  held  void.  Courts  will  not  enforce 
contracts  injurious  to  and  against  the  public  good.  Per  Ch. 
Justice,  2  Wils.  348.  Many  contracts  which  are  not  against  mo- 
ralitv  are  still  void  as  being  against  the  maxims  of  sound  policy. 
Per  Lord  Mansfield^  Coivj).  39.;  and  again  in  the  same  book 
p.  343.  his  lordship  uses  the  following  expressions:  "  The  ob- 
jection that  a  contract  is  immoral  or  illegal  as  between  plain- 
tiff and  defendant  sounds  at  all  times  very  ill  in  the  mouth  of 
the  defendant.  It  is  not  for  his  sake  however  that  the  objection 
is  ever  allowed;  but  it  is  founded  in  general  principles  of  policy 
which  the  defendant  has  the  advantage  of,  contrary  to  the  real 
justice  as  between  him  and  the  plaintiff,  by  accident,  if  I  may 
^ay  so.  The  principle  of  public  policy  is  this,  ex  dolo  malo  non 
oritur  actio.  No  court  will  lend  its  aid  to  a  man  who  founds  his 
cause  of  action  upon  an  immoral  or  illegal  act,  if  from   the 
plaintiff's  own  stating  or  otherwise.   If  the  cause  of  action  ap- 
pears to  arise  ex  turpi  causa  or  the  transgression  of  a  positive 
law  of  this  country,  there  the  court  says  he  has  no  right  to  be 
assisted.  It  is  upon  this  ground  the  court  goes,  not  for  the  sake 
of  the  defendant,  but  because  they  will  not  lend  their  aid  to 
uich  a  plaintiff.  Where  both  are  eqiialUi  in  the  wrong,  potior 
fst  conditio  defendrntis.''''  These  observations  afford  a  decisive 
answer  to  part  of  the  ingenious  arguments  of  the  defendant's 
counsel. 

But  it  has  been  further  objected  that  most  if  not  all  of  the 
cases  relied  on,  cither  respect  offences  prohibited  at  common 
law,  or  such  as  had  been  theretofore  created  by  statute,  and 
particularly  smuggling  transactions,  which  the  courts  were  ex- 
tremely jealous  of,  ;is  they  defrauded  the  royal  revenue. 

It  was  said  that  the  act  of  Gth  April  1802  (5  St.  Laws  198.) 
was  made  to  sujjply  the  v(  ry  deficiency  which  existed  before, 
and  which  was  now  attempted  to  be  supplied  by  a  judicial  deci- 
sion; for. V(?c.  4th  vacates  such  contracts  as  the  present,  and  the 
act  did  not  take  effect  till  tlie  1st  Mai/  1802. 

I  answer  that  it  would  be  no  great  stride,  in  my  idea,  tn 

Vol.  I.  Q 


122  CASES  IN  THE  SUPREME  COURT 

1804  .maintain  that  after  the  decree  at  Trrnto?},  the  sales  of  titles 
vj„T~  within  the  limits  o{  Pcnnsijhania^  under  the  grants  of  a  sister 
7..  state  not  recognised  by  our  laws,  would  be  indictable  on  the 
Smith,  principles  of  the  common  law.  Such  acts  are  immediate  attacks 
on  the  sovereignty  of  this  state,  tend  to  violences  of  the  most 
alarming  nature,  and  are  public  evil  examples.  But  supposing 
it  to  be  otherwise,  and  that  the  authorities  in  the  English  books 
related  merely  to  smuggling  transactions,  (though  the  fact  is 
contrary,)  I  t.ike  it  that  the  same  grounds  of  decision  which 
influenced  the  courts  in  England  to  determine  such  contracts 
to  be  invalid,  would  equally  operate  on  our  minds  to  declare 
the  same  as  to  agreements  which  intimately  affect  the  public 
peace  and  national  prosperity.  In  both  cases  the  subject  matter 
is  of  great  magnitude.  The  public  revenue  is  endangered  and 
affected.  Individuals  are  defrauded.  Why  should  we  not  be  as 
tenacious  as  British  judges  in  instances  of  public  revenue 
being  defrauded,  tending  to  infractions  of  the  peace,  and  where 
the  very  acts  of  contracting  are  express  denials  of  the  7-ight  of 
the  people  over  a  large  portion  of  the  state?  It  was  candidly 
admitted  during  the  argument  that  the  deed,  of  which  the  single 
bill  in  question  was  the  consideration,  vested  no  right  or  inte- 
rest whatever  in  the  grantee. 

I  will  only  add,  that  the  subject  of  a  contract  ought  to  be 
such  a  thing  as  men  have  a  lawful  right  and  power  of  stipulating 
about,  at  pleasure.  1  Pozv.  Cent.  164.  The  law,  by  forbidding 
an  act,  takes  from  the  contractor  the  power  of  obliging  himself 
to  do  it,  and  consequently  prevents  the  person  contracting  from 
gaining  any  right  of  requiring  it  to  be  done.  Id.  1G5.  A  con- 
tract or  agreement  is  unlawful  if  it  be  to  encourage  unlawful 
acts  or  omissions.  Id.  195.  On  the  whole,  I  am  of  opinion  that 
the  judgment  in  the  Common  Pleas  be  reversed. 

Smith  J.  concurred,  and  assigned  his  reasons. 

Brackenridge  J.  The  consideration  of  the  bill  in  question 
is  the  giving  possession  and  the  sale  of  a  tract  of  land  under  a 
title  derived  from  what  is  called  the  Susquehanna  company. 
This  claim  is  founded  on  the  principle  that  the  land  is  without 
the  charter  boundary  of  Pennsylvania.  Hence  it  is  adverse  to 
the  claim  of  this  state  both  as  to  soil  and  jurisdiction.  It  is  true 
the  mouth  of  the  claimant  paramount,  the  state  of  Connecticut.^ 


OF  PENNSYLVANIA.  123 

from  whom  the  company  derive  their  claim,  is  shut  by  a  decision.      j  804. 
But  this  does  not  conclude  the  possessor  as  to  right  of  soil,  nor,, 
in  fact  will  it  conclude  his  exertions  as  to  jurisdiction.  The         ^,, 
very  object  of  the  sale  is  to  induce  settlers,  and  increase  strength     Smith. 
to  support  vexatiouslv  the  claim  in  the  courts  of  the   United 
States,  or  by  force  independent  of  law.  Shall  the  courts  of  the 
state  be  called  ujion  to  enforce  contracts  and  assist  combina- 
tions against  herself.''  Exercising  jurisdiction,  the  state  is  bound 
to  preserve  the  peace  and  aid  contracts,  but  not  such  as  militate 
against  her  own  rights.   It  would  be  unnatural,  and  against  rea- 
son, which  is  a  ground  of  the  common  law.   It  is  against  pub- 
lic policv.  Self  preservation  forbids  it.   So  that  independent  of 
any  act  of  the  legislature  I  must  hold  the  transfer  illegal,  and 
|23:he  obligation  given  under  such  consideration  void. 

'Slj 
96/ 

so'  Judgment  reversed. 

«, 


Lang  and  Whit aker  as^ahist  Ann  Keppele       Saturday, 

September 

Executrix  of  Georgp:  Keppele.  I5th. 

Tf^HIS  was  an  action  of  assumpsit  to  recover  a  partnership  I'^  order  to 
-*-  debt  due  by  the  house  of  Keppele  and  Zanfzing-er,  the  de-es^^le  of  a 
fendant  being  executrix  of  the  former,  and  the  latter  being  still  ^^ccased 
alive  but  a  certificated  bankrupt  before  the  action  was  brought,  action  foi^il 
The  declaration  contained  a  recital  of  the  partnership,  and  an P'^'t»^*>sl'ip 
averment  of  the    bankruptcy   of   Zantzinger  since    A'6y;/;t7t'A- ^„^tained 
death.  The  pleas  were  non  assumpsit,  plene  administravit,  and-^S*'"^*^  '"s 
debts  of  a  higher  nature.  At  the  trial  before  Shippen  C.  J.  and  tiu-siirviving> 

Smith  J.  at  Nisi  Prius  in  August  1804,  a  verdict  was  taken  for  P»'V".^r be  a 

cert  J  he  lie  d 
the  plainliffs,  sul»ject  to  the  opinion  of  the  court  upon  a  point  i,;,„i;,.„pt  (j^.. 

reserved,  whether  an  action  for  a  partnership  debt  can  be  main- ''"''-"  "ciion 

11  r  1  1  11        brouurlil. 

tamed  aganist  the  executor  ol  a  deceased  partner,  the  other 
partner  being  alive,  but  u  certificated  bankrupt  before  action 
brought. 

Meredith  for  tiie  plaintiffs  now  argued  that  the  action  was 
well  l)rought;  for  otherwise  his  clients  would  have  a  clear  right 
without  a  remedy.  It  is  true  as  a  general  rule  that  the  demand 
stands  good  at  law  against  the  surviving  partner,  and  that  the 


124  CASES  IN  THE  SUPREME  COURT 

1804.      executor  of  a  deceased  partner  cannot  in  such  case  be  pursued. 

^Lant       ^^^^  here  the  survivor  is  a  certificated  bankrupt;  to  pursue  him 

1,,         is  impossible.   The  only  security  of  the  plaintifls  is  in  the  fund 

Keppele.  of  the  deceased  partner,  which  can  be  reached  in  this  way 

alone;  and  this  court,  giving  effect  to  equitv  principles,  will 

permit  us  to  get  at  the  fund,  without  regard  to  the  strict    ul'.  of 

law.  Pollard  v.  Schajffer.  (cT)  Tliis  is  every  day's  practice  in 

Chancery.  Lane  v.   Williams  (b),  Stephenfion  v.  Chiswell  (c). 

Our  claim  in  equity  is  indisputable,  for  each  partner  is  liable 

for  the  Avhole  debt;  and  on  a  judgment  against  two  partners 

execution  may  be  levied  on  the  goods  of  one. 

But  at  all  events  the  defendant  should  have  pleaded  this  mat- 
ter in  abatement.  Rice  v.  Shute  (d)^  Abbot  v.  Stnith  (e),  Addison 
V,  Overetid  (/)• 

Levy  for  the  defendant,  argued  that  a  plea  in  abatement 
would  have  been  ill,  for  he  could  not  have  given  the  plaintiffs 
any  other  party  liable  to  suit.  Besides,  the  objection  is  not  that 
you  should  have  joined  Zantziuger^  for  that  would  have  been 
irregular,  but  that  you  cannot  sue  the  executrix  at  all  under  the 
present  circumstances;  it  is  to  the  action  and  not  to  the  exclu- 
sion of  the  surviving  partner  that  we  object.  If  however  a  plea 
in  abatement  would  have  answered,  it  is  made  unnecessary  by 
the  declaration,  which  of  itself  shews  that  the  action  does  not 
lie.  Chancery  proceeds  against  the  fund,  but  our  courts  against 
the  person;  and  if  a  proper  party  is  wanting,  notwithstanding 
equity  is  a  part  of  our  law,  the  jurisdiction  fails.  It  Js  for  the 
legislature  to  fmd  the  remedy.  The  rule  of  law  is  clearly 
against  the  plaintiffs. 

At  the  conclusion  of  the  argument  all  the  judges  were  of  opi- 
nion that  the  plea  in  abatement  would  have  been  ill.  At  the 
same  time  upon  the  principal  question,  Shippen  C.  J.  Yeates 
J.  and  Brackenridge  J.  were  for  the  plaintiffs;  but  no  opi- 
nion was  given  till  this  day,  when  Smith  J.  expressed  his  as- 
sent to  the  opinion  of  the  court  for  the  following  reasons: 

Smith  J.  The  reasons  assigned  in  support  of  this  action  I 
have  all  along  thought  of  much  force;  but  I  at  first  doubted 

ia)   1  DaH.  212.  (c)  3  Vez.jr.  292.  (<?)  2  W.  BL  947- 

(*)  2  Vtrn.  292.  {d)  5  Burr.  2611.  (/)  6  i).  b*  E.  766.  .^ 


OF  PENNSYLVANIA.  125 

whether  sitting  as  a  court  of  law  we  could  give  relief  to  the      1804. 
plaintiffs.  I  now  think  however  that  wc  are  not  controlled  by  ~~U^ 


NG 


the  technical  objection.  The  equity  of  the  case  is  clearly  with  -j. 
the  plaintiffs,  for  the  contract  entered  into  with  partners  is  Keppele. 
sdways  joint  and  several^  eacli  partner  is  liable  to  pay  the  whole, 
and  contribution  lies  entirely  among  themselves.  The  partner 
who  survives  is  in  this  case  a  certificated  bankrupt,  who  can  no 
longer  be  pursued-,  the  partner  who  is  dead  has  left  assets  in 
the  hands  of  the  defendant,  which  can  be  reached  only  in  this 
way.  It  is  therefore  a  fair  case  for  controlling  the  form  of  ac- 
tion so  as  to  give  effect  to  the  equity  powers  of  this  court. 

Per  Curiam.  Judgment  for  plaintiffs. 


Harris  a^'ciinst  Fortune.  Tuesday, 

"  September 

18U». 

THE  plaintiff  in  this  cause  recovered  judgment  for  a  swmless  j^  ^,^^,  p^^jj^_ 
than  was  requisite  to  entitle  him  to  costs,  and  then  issued  tiH'  levies  by 
,.,,        ii^-^         ^  1         .  1-1  execution 

a  ca.  so.  upon  which  the  debt,  interest,  and  costs^  were  levied  ^.^j^jj,  ^^ 

hv  the  sheriff  who  paid  thein  over  to  the  persons  respectively  «liicli  he  is 
'  not  entitled, 

interested.  the  court 

will  compel 

T.  Ross  for  the  defendant  obtained  a  rule  upon  the  plaintiff'^""  ';>  7'^= 

^  J      •  •     1       ^''  refund 

to  shew  cause  whv  the  costs  up  to  the  time  ot  rendering  judg-ihem,  even 
ment,  should  not  be  refunded.  jj^-^'^^^y 

distributed 
Franklm  for  tlie   plaintiff  now  appeared  to  shew  cause,  andhy  the  she- 
urged  that  the  rule  was  of  a  very  novel  nature;  that  if  the  de-  '"''^ 
fendant  had  not  been  compellable  to  pay  costs,  they  might  have 
been  stopjied  in  the  siieriff's  hands  until  a  hearin,g  in  court;  but 
that  after  they  had  been  paid  over,  and  all  proceedings  in  the 
cause  exhausted,  up  to  the  final  distribution  of  the  money,  it  was 
irregular  to  open  the  cause  by  taking  a  ride  in  it.  The  proper 
remedy  was  by  action. 

Per  Curiam.  The  plaintiff^was  the  cause  of  the  irregularity 
by  issuing  execution  for  more  than  was  due  to  him;  and  as  the 
process  of  the  court  was  made  use  of  to  compel  the  defendant 
to  pny  what  by  law  he  was  not  bound  to  pay,  this  summary  pro- 
cccdinp^  in  th'-  cause  is  the  proper  one  to  (  nforce  repayment.    , 

Rule  absolute. 


lb  I'JGI 
4y  4HH 
Hs(4S»r, 

lis  CASES  IN  THE  SUPREME  COURT  I  l^'mi 

1 805. 

-  Lessee  of  Frazer  and  others,  Assignees  of  Greeves 

Sc*pttmi)i r  ^  bankrupt,  against  H  a  l  low  ell. 

13th.  

A.  as  aRint  npijjjs  ^yas  an  eicctment  lor  a  house  and  lot  in  the  city  of 

for  B..  ami  to      B  .  .       ^  ,         .  .  .  , 

secure  .1  PhUadclphta;   and  the  following  case  was  therein  stated 

dt  bt  (hie  to    £qj.  ^j^j,  opinion  of  the  court,  to  be  considered  as  a  special  verdict. 

Imii,  takes  »  * 

a  TTi'M-t.u'ap^e 

of  real  estate      it  Q^  the  1  ^th  day  of  March  1797,  John  Shields  executed  a 

111  Ills  own  r     1  •  • 

mme  iVom    "  mortgage  of  the  premises  in  question  to  the  defendant  to 

tl.c  debtor,    n  secure  a  debt  of  1207  dolls.  50  cts.  On  the  20th  day  of  Au- 

und  tlien  ob-  .  .  . 

tains  a  re-     '"''  gunt  1800  the  assignees  oi  John  Shields^  by  indorsement  on 

lease  of  the  n  the  mortcraee,  released  the  equity  of  redemption  to  the  defen- 

eqintv  of  re-  o   o   7  -i      j ^  i 

demotion.  "  dant.  This  mortgage  was  taken  in  the  defendant's  name,  to 
A  retains  the  n  secure  a  debt  due  by  John  Shields  to  Thomas  Grecves,  and  for 

title  deeds  •'  •'  . 

and  B.  re-     "  his  use,  and  the  release  was  executed  to  the  defendant  Jor  the 

ceivestfic  "said  Grecves^s  use."  [A  supplcmentarv  case  stated  amoncr 
rents  and  l  ri  .  o 

profits.  Af-  other  things  that  the  debt   was  by  a  note  purchased  in  the 

tenvards  A.  j.j.^^j.]jet  for  Greeves.  which  Halloivdl  undertook  to  secure: 
Jends  Ins  '  _  _  _      ' 

notes  to  B.,  that  the  name  of  Greeves  did  not  appear  in  the  transaction, 
tTkos'thern  ""^  ^^^^  ^^  known  to  Shields;  and  that  the  mortgaged  premises 
up,  shortly  were  put  up  at  public  sale  at  the  request  of  Shields^  and 
bYs^I  clar-  hought  in  by  Halloxvell^  after  which  Shields'' s  general  assignees 
cdabank-     released.] 

si''ntes  cani  "  -^^t^'''  ^^  release  was  executed,  which  with  the  mortgage 
not  recover  "  always  remained  in  the  defendant's  possession,  the  defendant 
ironrA^mtiV'  ^^"^'^  7"/2C7?mA'  Greeves  his  notes,  which  were  discounted  at  the 
ihej  reini-  "  bank  of  Pennsylvania  for  his  the  said  Thomas  Greevcs^s  use, 
The  an. mint  "  ^"^  which  were  frequently  renewed  till  the  7th  day  of  August 
-0  paid  for  *'  1802,  when  the  defendant  paid  for  the  said  Thomas  Greeves 
"  one  of  those  notes  amounting  to  650  dolls,  and  on  the  2d  day 
"  oi  September  following  paid  another  for  him  of  500  dolls. 

"  After  Thomas  Greeves  .stopped  payment  and  before  the 
"  issuing  of  a  commission  of  bankruptcy  against  him,  the  de- 
"  fendant  told  Greeves  that  he  would  keep  the  estate  in  question 
"till  he  was  reimbursed  the  1150  dolls.,  which  he  had  thus 
"  paid  for  him;  but  it  is  admitted  that  the  mortgage  and  release 
"  were  not  originally  executed  to  the  defendant  for  the  purpose 
"  of  securing  any  debt  due  by  Greeves  to  him,  nor  was  any 
"  agreement  subsequently  made  that  the  defendant  should  hold 
"  the  estate  as  a  security  for  any  money  owing  by  Greeves  to 


OF  PENNSYLVANIA.  127 

•*  him.   It  is  also  admitted  that  Grefyf".?  received  the  rents  and      1805. 
•'  profits  of  the  premises  up  to  tl>e  time  of  his  bankruptcy.  "Ti         """" 

'  '  '  »       -^  iUAZER 

"  On  the day  of  December  1 802  Greeves  was  declared  a         -^,, 

"■'  bankrupt  by  the  commissioners  under  a  commission  lawfully     Hallo- 
"  issued  against  him  dated  the   19th  November  1802,  and  the      well. 
"  commissioners  on  the  21st  December  1802  made  a  general 
"  assignment  in  the  usual  form  to  the  lessors  of  the  plaintiff,  of 
"  all  the  estate  and  effects  of  the  said  Thomas  Greeves  for  the 
*•'  use  of  his  creditors. 

"  If  upon  the  above  facts  the  court  shall  be  of  opinion  that 
"  the  lessors  of  the  plaintiff  are  entitled  to  recover  and  hold  the 
"  premises  in  question  to  be  appropriated  to  the  use  of  the 
''  creditors  of  Thomas  Greeves  generally,  then  judgment  to  be 
''  entered  for  the  plaintiff.  But  if  the  court  shall  be  of  opinion 
"  that  the  premises  in  question  ought  to  remain  as  a  security  in 
"  the  hands  of  the  defendant  for  the  monies  due  to  him  by 
"  Thomas  Greeves,  and  that  the  le-  sors  of  the  plaintiff  are  not 
"  entitled  to  recover  and  hold  the  same  until  the  said  monies 
"  are  reimbursed  to  tlie  defendant,  then  judgment  to  be  entered 
"  for  defendant." 

It  v/as  argued  in  December  term  ISO-l-,  by  Dallas  and  W. 
TH^hman  for  the  plaintiff,  and  by  Condij  and  E.  Tilghman  for 
the  defendant. 

For  tiie  plaintiff.  A  person  whose  name  has  been  used  as  the- 
^antee  in  a  conveyance,  but  who  has  paid  no  purchase  monev, 
expended  nothing  upon  the  trust,  received  none  of  the  rents  and 
profits,  a  mere  name  on  the  paj)ers,  lends  money  upon  a  distinct 
transaction  to  the  real  owner  who  becomes  bankrupt,  and  then 
claims  a  lien  on  the  prf)perty  for  his  debt.  This  is  the  defend- 
ant's claim,  and  it  is  against  equity  as  well  as  law.  We  reprc 
sent  the  general  creditors  who  have  more  equity  than  the  de- 
fendant, and  we  are  upheld  by  the  bankrupt  law.  In  Pcnnsijl- 
vania  such  a  claim  is  out  of  tlic  cjuestion,  for  here  the  owner  of 
the  trust  is  the  master  of  the  legal  estate.  He  may  bring  eject- 
ment for  it  in  his  own  name.  Kcnnedi/  v.  Furtf.  (a)  His  wife  is 
dowableofit.  A  judgment  against  him  is  a  lien  upon  it,  by 
uhich  it  may  be  taken  in  execution;  and  no  conveyance  of  the 

in)  1  Va/l.  72: 


123  CASES  IK  THK  SUPREME  COURT 

1805.      tnist  after  jitdl'ttf^nt  Avill  defeat  the  creditor.   If  A.  uses  B.'s 

Fr  a /KiT  "^'^'-'  '-^^  ^^^^  ^^"^  oflice  and  pays  the  money,  he  has  the  title  and 

T.         may  sell  the  h\nd;  it  is  every  day's  practice;  and  it  never  was 

Hallo-    heard  of  that  B.  could  hold  the  land  until  a  debt  due  to  him  by 

WELL.  ^^  ^,jg  paid.  In  all  these  particulars  we  deviate  from  the  law 
of  Englmid;  for  there  the  complete  legal  estate  and  the  control 
over  it  are  in  the  trustee;  so  much  so  that  if  after  judgment 
against  cestui  que  trust  and  before  execution  sued,  the  trustee 
conveys  the  lands,  they  cannot  be  taken  in  execution.  Hunt  v. 
Coles  et  ah  (ci)  If  therefore  any  English  cases  favour  the  de- 
fendant, it  is  upon  principles  which  do  not  apply  here.  One 
ground  upon  which  they  there  make  the  legal  estate  in  a  mort- 
gagee a  security  for  claims  that  do  not  arise  out  of  the  mort- 
gage, is  because  when  the  mortgagor  or  his  heir  or  assignee 
comes  to  foreclose  they  apply  the  principle  that  he  who  asks 
equity  must  do  it.  But  here  we  ask  no  equity,  we  are  entitled 
to  this  estate  at  law,  our  very  process  is  ejectment.  Another 
ground  is  that  by  compelling  the  plaintiff  in  the  bill  to  pay  other 
debts  to  the  defendant,  they  avoid  a  circuity  of  action ;  but  where 
an  action  will  not  do  the  same  thing  the  ground  fails.  Thus 
upon  a  bill  to  foreclose,  a  mortgagee  may  tack  his  bond  to  the 
mortgage  as  against  the  heir,  because  when  the  land  is  redeem- 
ed it  becomes  assets  in  the  hands  of  the  heir;  but  it  cannot  be 
done  as  against  third  persons.  Loxvthion  v.  Hasel  (b).  The 
court  never  allows  it  against  creditors.  2  Vez.  162.  Anon.  An- 
other ground  is  an  agreement  or  presumed  agreement  that  the 
legal  estate  shall  stand  as  a  further  security.  But  the  present 
case  states  no  agreement;  on  the  contrary  it  states  facts  which 
negative  an  agreement. 

The  case  being  clear  of  these  principles  how  does  it  stand 
upon  authority  in  the  particular  case  of  trusts  ?  So  far  as  the 
silence  of  the  books  is  an  argument,  it  is  with  us.  For  the  only 
decision  apparently  against  us  is  in  a  note  in  2  Cha.  Ca.  87. 
very  imperfectly  reported;  and  there  the  trustee  bought  the 
estate  with  his  own  money;  and  was  also  the  general  agent 
of  cestui  que  trust.  Equity  therefore  would  not  give  Lord 
Dacres  the  land  without  paying  Crompe  all  he  owed  him  for 
his  agency,  of  which  this  land  was  but  an  item.  The  language 
which  is  constantly  used,  that  trustees  should  be  saved  harm- 
Co)  1  Com.  R'ip.  226  (i)  Broiuyi^s  Ca.  CAa.162. 


OF  PENNSYLVANIA.  129 

Itess  as  to  all  damages  relating-  to  the  trusty  implies  that  the  in-      i805. 
demnity  shall  go  no  further.  Balsh  v.  Hyham.  (a)  Frazer 

But  whatever  might  be  the  case  between  the  defendant  and         ^, 
Greevesy  the  rights  of  third  persons  intervened  before  the  notes    Hallo- 
were  paid,  and  before  any  intention  of  resorting  to  this  security     well. 
was  declared.  G reeves  had  then  stopped  payment,  and  had  he 
given  a  deed  of  the  house  to  Halloxvcll  it  would  have  been 
too  late;  he  must  have  done  it  in  contemplation  of  an  act  of 
bankruptcy. 

For  the  defendant.  The  case  is  to  be  considered,^rjff,  as  be- 
tween the  defendant  and  Greeves;  and  secondly^  as  between  the 
defendant  and  tUe  assignees  of  Greeves. 

1.  The  statement  shews  that  HallowelVs  object  was  to  secure 
a  debt  due  by  Shields  to  Greeves,  and  that  all  the  proceedings 
were  mere  machinery.  He  stands  then  in  the  position  of  a  fac- 
tor, who  collects  debts,  advances  money,  and  may  unquestiona- 
bly retain.  If  instead  of  money  he  takes  goods,  he  has  a  lien  on 
them.  If  he  takes  a  bond  or  mortgage  it  is  the  same  thing;  and 
it  is  still  the  same  if  he  takes  land.  It  becomes  from  the  pur- 
pose with  which  it  is  assigned  an  article  of  merchandise,  subject 
to  the  same  disposition,  answering  the  same  views,  and  in  equity 
is  governed  by  the  same  principles.  Land  devised  to  pay  lega- 
cies is  money;  money  devised  to  buy  land,  is  land;  it  is  the  pur- 
pose which  is  the  material  tiling,  even  in  England  where  real 
estate  has  a  peculiar  sanctity;  a  fortiori  in  Feivi-njhania  where 
it  has  become  an  axiom  that  lands  are  chattels  for  the  payment 
of  debts. 

Chancery  will  never  decree  a  conveyance  from  the  agent  to 
the  principal,  until  the  agent's  debt  is  paid.  Bradburne  v.  Amand 
(Ji)  is  decisive.  Lord  Dacres  employed  Crompe  to  purchase 
land  for  him,  and  to  take  up  money  for  it,  which  he  did,  and 
took  the  purchase  in  his  own  name.  Lord  Dacres  by  bill  prayed 
that  Crompc  might  convey  the  lands  upon  payment  ot  the  mo- 
ney; but  as  Crotnpc  had  uj)on  other  occasions  mortgaged  and 
engaged  for  Lord  Dacres,  the  Lord  Chancellor  decreed  that  the 
latter  should  pay  all  or  none.  The  answers  to  lliis  case  are  not 
satisfactory.  Its  being  Crompe^s  own  money  was  of  no  conse- 
quence, for  Lord  Dacres  offered  to  pay  that;  and  as  to  his  being 

{a)  2  P   Wm^Ai5  ( h)2  Chii-  Ca.  S7 

Vol..  I.  H 


i;,0  CASES  IN  THE  SUPREME  COURT 

1805.      the  general  agent,  the  law  no  where  says  how  much  agency  is 
Frazer    "'-'Ci^ssary  to  constitute  this  equity. 

•J..  It  moreover  consisted  with  Halloivi'lPs  authority  to  sell  this 

Hai.i.o-    land,  and  if  he  had  sold  it  he  might  have  set  off  the  debt  against 

WELL,  ^j^^  proceeds.  It  is  therefore  against  conscience  when  this  was 
the  true  design  of  the  parties,  to  treat  the  security  as  real  estate 
to  prevent  a  discount,  which  is  natural  justice  in  all  cases.  1  Eq. 
Abr.  8.  pL  6. 

But  the  defendant  must  succeed  upon  another  ground.  To  a 
bill  to  redeem  a  mortgage,  the  defendant  answered  that  he  had 
lent  the  mortgagee  two  sums  on  two  mortgages,  one  of  which 
was  deficient  in  value  and  was  not  asked  to  be  redeemed;  and 
the  decree  was  that  both  should  be  redeemed  or  neither.  Pope 
V.  Onslow  (a),  Mcrgrave  v.  Lehooke  (J)),  lie  that  asks  equity 
must  do  equity.  But  it  is  said  Greeves  was  to  all  intents 
the  oAvner,  that  the  trustee  was  a  mere  name,  and  that  he 
does  not  ask  equity.  This  is  not  so.  The  law  of  Pennsyl- 
'vania  on  the  subject  of  trusts  is  the  same  with  the  law  of 
England  in  every  case  that  does  not  turn  upon  a  question  of 
remedy.  We  have  no  Court  of  Chancery,  and  the  cestui  que 
trust  must  therefore  have  an  ejectment,  or  he  can  have  nothing; 
but  he  maintains  it  on  his  equitable  title,  and  not  because  he  is 
master  of  the  legal  estate.  We  deny  that  a  wife  is  dowable  of  a 
trust;  it  has  never  been  so  determined;  the  legal  estate  is  never 
overlooked  unless  where  if  set  up  it  would  defeat  the  beneficial 
interest;  and  the  case  then  is  as  though  Greeves  asked  a  con- 
veyance of  the  legal  estate,  which  he  could  not  have  without 
doing  equity  to  the  trustee.  This  very  point  was  decided  in 
CeciPs  lessee  V.  Peters,  at  l^ork  Nisi  Prius  in  1788,  where  all  the 
sums  due  to  the  defendant  the  trustee,  were  ordered  to  be  paid 
before  the  plaintiff  should  have  a  conveyance  or  recover.  To 
the  same  effect  is  Harwoodv.  Wraynam.  (c) 

N  There  is  yet  a  third  ground.  It  is  a  presumption  of  law  that 

we  lent  our  money  upon  the  land,  knowing  that  we  had  hold  of 
the  land  by  the  mortgage  and  release.  It  is  upon  this  principle 
that  if  a  first  mortgagee  lends  a  further  sum  to  the  mortgagor 
upon  a  statute  or  judgment,  he  shall  retain  against  a  mesne 
mortgagee  until  both  mortgage  and  statute  are  paid.  Brace  v. 
Dutchess  of  Marlborough,  (d^ 

(a)  2  Vern.  286.  (c)  1  i?c///.  Reh.  r.Q. 

{by  2  Ven.  207.  (:/)  2  P.  Wvu.  494. 


OF  PENNSYLVANIA.  131 

2.  The  assignees  take  the  bankrupt's  estate  bound  by  all  the      1805. 
equit\^  to  which  it  was  liable  in  the  bankrupt's  hands.   Taylor    Yuazek 
V.   ]V/ieeler  (a),  Brown  v.  Jones  (Ji)^  Hinton  v.  Hinton  (c).         -v. 
They  have  even  less  equity  than  an  individual  assignee  without    Hallo- 
notice.  1  Fonhl.  90.  The  only  question  then  is  whether  Greeves     "*'^^^'''- 
committed  or  contemplated  an  act  of  bankruptcy  when  the  de- 
fendant's equity  arose;  and  as  to  this  the  case  is  silent,  though  it 
is  manifest  that  the  equity  arose  when  the  notes  were  given.  If 
the  payment  of  a  note  is  made  after  an  act  of  bankruptcy,  it  may 
nevertheless  be  set  off  against  a  demand  by  the  assignees,  pro- 
vided the  note  was  given  before.  Smith  v.  Hodson.  {cl^ 

Shippev  C.  J.  was  not  present  at  the  argument. 

Yeates  J.  I  find  myself  confined  to  the  facts  stated  as  on  a 
special  verdict;  and  I  do  not  feel  myself  at  liberty  to  indulge 
any  conjecture  on  the  occasion.  Our  decision  must  be  grounded 
on  the  sta4K;mcnt  itself;  and  from  this  I  am  only  authorized  to 
state  that  Mr.  Halloxvell  was  the  agent  of  Greeves  in  accepting 
the  mortgage,  to  secure  the  original  debt,  and  the  release  of  the 
equity  of  redemption.  The  latter  instrument  recites  the  nomi- 
nal consideration  of  7s.  6J.,  and  that  the  mortgaged  premises 
had  been  struck  off  at  public  auction  for  910  dollars.  It  cannoi 
be  denied  that  a  mortgage  in  Pennsi/lvania  as  well  as  in  Eng- 
land is  considered  as  a  personal  contract,  and  that  the  mortgagee 
lias  no  interest  in  the  lands  beyond  the  security  of  his  debt. 
Prec.  Cha.  99.  Stra.  135.  413.  Burr.  978.  It  is  true  there  is  a 
difference  in  the  mode  of  recovery  in  the  two  countries.  Instead 
of  foreclosing  the  equity  of  redemption  by  a  bill  in  Chancer}', 
our  act  of  Assembly  directs  the  remedy  by  scire  facias.,  and  an 
immediate  sale  of  the  mortgaged  premises  under  a  levari  facias. 
When  the  mortgage  money  is  paid,  tlie  mortgagee  is  obliged  to 
enter  satisfaction  in  tlie  recorder's  office  of  the  proper  county, 
under  a  defined  penaltv.  Hence  it  is  that  a  third  mortgagee  in 
this  state  buying  in  a  first  mortgage  shall  not  have  a  preference 
against  the  second  mortgagee  until  the  sums  secured  by  both 
instruments  arc  paid.  But  in  England  it  is  otherwise  under  the 
operation  of  the  principle  in  Chancery,  that  where  there  is  a 
legal  title  and  equity  on  one  side,  the  Chancellor  will  not  permit 

[a)  2  Vcrn.  564  ,<•)  2  Vcz.  033- 


152  CASES  IN  THE  SUPREME  COURT 

1805.      *^^  prior  equity  of  another  person  to  prevail  against  such  title- 

■"T;  But  we  have  the  authority  of  Lord  Ilanhvicke  to  declare  that  if 

^,  this  had  happened  in  any  other  country  it  could  never  have 

Hallo-    made  a  question:  for  if  the  law  and  equity  are  administered  by 

WELL,      the  same  jurisdiction,  the  rule  qui  prior  est  tempore  potior  est 

jure  must  hold.  2  Vez.  574f. 

Much  reasoning  has  been  grounded  on  this,  that  the  pre- 
mises in  controversy  are  to  be  deemed  as  under  a  mortgage 
from  Shields  to  the  defendant;  and  inasmuch  as  it  was  the  ob- 
ject of  the  mortgage  to  secure  a  debt  of  1207  dollars  50  cents, 
the  transaction  has  been  compared  to  those  cases  where  lands 
haye  been  devised  to  be  converted  into  money ;  there  equity  hath 
regarded  them  as  money,  and  vice  versa.  2  Atk.  307.  3  Atk.  254. 
And  so  land  agreed  to  be  sold  shall  go  as  money,  and  money 
agreed  to  be  laid  out  in  land  shall  go  as  land.  Salk.  154.  If  in- 
deed from  any  circumstances  disclosed  in  the  case,  we  are  ena- 
bled to  pronounce  that  Greeves  or  his  assignees  might  recur  to 
Mr.  Hallorvell  for  the  original  debt  due  from  Shields^  and  that 
it  could  still  be  considered  as  an  existing  personal  demand,  all 
difficulties  would  cease;  because  it  is  settled  in  Smith  et  al.  as- 
signees v.  TIodsoHy  4  T.  JR.  216.  that  where  the  defendant  lent 
his  acceptance  to  the  bankrupt  on  a  bill  which  did  not  become 
due  till  after  the  act  of  bankruptcy,  and  was  then  outstanding  in 
the  hands  of  third  persons,  yet  the  defendant  having  paid  the 
amount  after  the  commission  issued  and  before  the  action 
brought  bv  the  assignees,  is  legally  entitled  to  a  set-off.  But 
here,  by  the  conduct  of  both  parties,  and  by  Greeves^s  acquies- 
cence in  the  acceptance  of  the  mortgage  and  release,  and  his 
subsequent  receipt  of  the  rents  and  profits  of  the  premises  in 
question,  up  to  the  time  of  his  bankruptcy,  his  demand  of  a  per- 
sonal nature  is  converted  into  an  equitable  interest  in  the  land, 
and  neither  he  nor  his  assignees  could  afterwards  look  to  the 
defendant  for  the  original  debt. 

It  is  obvious  also  that  the  equity  of  redemption  being  extin- 
guished by  the  release  of  the  assignees  of  Shields  to  the  defen- 
dant and  accepted  by  him  for  the  use  of  Greeves^  the  defeasible 
nature  of  the  estate  ceased  and  was  wholly  absorbed;  the  strict- 
ly legal  interest  in  the  premises  became  vested  in  Mr.  Hallo- 
rvell, and  the  usufructuary  interest  in  Greeves.  In  Femisylva- 
nia  where  we  have  no  court  of  Chancery,  it  must  be  admitted 
that  in  such  trust  deeds,  the  legal  estate  is  almost  nominal  from 


OF  PENNSYLVANIA.  133 

the  necessity  of  the  case.  With  respect  to  the  power  of  the      1805. 
trustee  to  prejudice  his  cestui  que  trust  by  ahenation,  the  sin-~r;  " 

gle  case  in  which  his  alienation  can  bind  the  cestui  que  trust         x,. 
is  where  being  in  possession  of  the  estate  he  conveys  it  for  a    Hallo- 
valuable  consideration  and  without  notice,  in  which  case  the     ^vell. 
purchaser  will  be  entitled  to  hold  the  estate  against  the  cestui 
que  trust.  1  P.  Wms.  128.  2  Fonbl,  170.  Here  a  cestui  que  trust 
may  support  an  ejectment  in  his  own  name,  though  it  cannot  be 
done  in  England  unless  in  some  special  cases.  1  Dall.  72. 

Th-  point  in  question  maybe  viewed  in  two  lights:  consider- 
ing Greeves  in  full  credit  when  the  accommodation  notes  were 
taken  up,  or  as  a  bankrupt.  Mr.  Halhrvell  can  only  be  consi- 
dered as  a  mere  trustee  whose  name  has  been  used.  He  falls 
within  the  general  principle,  that  an  estate  purchased  in  the 
name  of  one  with  the  money  of  another  is  a  resulting  trust, 
although  there  be  no  written  declaration,  and  is  excepted  out 
of  the  statute  of  frauds.  1  Atk.  60.  1  Vern.  367. 

If  an  ejectment  had  been  brought  by  Greeves^  when  solvent, 
against  the  defendant,  I  should  suppose  there  could  be  no  dif- 
ficulty in  asserting  that  the  latter  could  not  defend  himself  in 
possession  by  the  offer  of  proof  that  the  former  owed  him  mo- 
ney, which  he  had  lent  to  him  or  expended  for  him  in  matters 
whoWy  foreign  to  the  trust  estate,  and  for  which  the  former  had 
neither  given  nor  engaged  to  give  any  security  either  real  or 
personal.  Are  we  warranted  from  the  facts  stated  in  adopting 
the  language  of  the  master  of  the  rolls  in  Brace  v.  the  Dutch- 
ess of  Marlboro^  2  P.  Wms.  494.  in  the  case  of  a  first  mortgagee 
lending  a  further  sum  to  the  mortgagor  upon  a  statute  or  judg- 
ment, "  that  it  is  to  be  presumed''''  that  defendant  lent  his  notes 
as  knowing  he  had  hold  of  the  lands  by  the  mortgage  and  re- 
lease in  his  possession,  and  in  consequence  ventured  a  sum 
which  would  be  a  lien  thereon?  It  is  settkd  that  the  title  of  a 
trustee  shall  not  be  set  up  in  ejectment  against  the  cestui  que 
trusty  from  the  nature  of  the  two  rights  the  latter  is  to  have  the 
possession.  Burr.  1901.  As  a  matter  of  abstract  equity  and 
morality  it  may  justly  be  said  that  wiiile  Greeves  was  seeking 
for  the  premises  as  due  to  him  of  right,  he  ought  on  his  part  to 
pay  Mr.  Hnlkivell  a  fair  and  meritorious  debt;  but  it  could 
scarcely  be  urged  that  in  such  a  suit  a  court  of  law  who  are 
bound  to  distinguish  by  known  rules  between  real  and  personal 
/•states,  should  adopt  the  principle  that  "  he  who  seeks  equity 


f34  CASES  IN  THE  SUPREME  COURT 

1805.  "  s^^^'  ^^  equity,"  and  direct  a  set-off  of  the  debt,  or  a  retainti 

TT'  of  the  possession  until  the  same  should  be  paid.  They  would 

V.  necessarily  order  a  recovery  in  the  ejectment  against  the  trus- 

Hallo-  tee,  and  leave  him  to  his  personal  remedy  against  Grceves  for 

WELL,  j^jg  demand. 

The  case  of  the  lessee  of  Charles  Cecil  v.  He7iry  Korbjnany 
C  Richard  Peters  J  tried  at  Tork  Nisi  Prius  on  the  12th  and 
13th  June  1788,  has  been  cited  and  much  relied  on  by  defend- 
ant. I  was  of  counsel  with  the  defendant  in  that  case,  and  will 
fully  state  from  my  notes  the  pretensions  of  both  parties.  It  was 
an  ejectment  for  150  acres  of  land  in  Codorus  township.  The 
defendant  claimed  under  a  conveyance  to  William  Peters  from 
Ambrose  Draper^  the  eldest  great  grandson  of  John  Brothers^ 
who  obtained  deeds  of  lease  and  release  from  William  Penn 
for  250  acres  of  land  to  be  located  any  where  in  Perinsylvania^ 
dated  2d  Aujcfust  1681.  The  plaintiff  claimed  under  a  subse- 
quent deed  from  three  others,  the  great  grandchildren  of  the 
original  grantee,  and  the  son  of  one  of  them  who  was  dead. 
Peters  released  to  Joseph  Richardson^  who  in  pursuance  there- 
of obtained  a  warrant  in  1762  for  the  250  acres,  on  which  were 
surveyed  the  150  acres  in  question,  (inter  alia)  in  1763.  One 
Henry  Conrad  had  settled  on  the  lands  in  controversy  in  or 
about  1748,  built  a  small  house  and  a  mill  called  the  Green 
Mill,  including  under  one  roof  a  grist  mill,  oil  mill,  and  slitting 
mill,  a  large  barn,  cleared  land,  and  made  ten  or  twelve  acres 
of  meadow;  and  continued  in  possession  for  twenty  six  years. 
Mr.  Peters  contracted,  and  the  warrant  was  laid  on  the  land  dis- 
puted, and  a  patent  obtained  thereon  founded  on  the  old  right. 
Conrac^  might  certainly  have  maintained  his  possession  under 
his  valuable  improvement  and  actual  settlement,  because  the 
old  right  could  not  legally  have  been  l^id  thereon,  after  settle- 
ment and  appropriation.  But  he  and  the  vendees  under  him 
were  concluded  and  estopped  from  setting  up  an  adverse  title  by 
the  material  recital  of  particular  facts  on  which  they  founded 
their  pretensions.  Peters  therefore  and  his  vendee  held  the  le- 
gal title  as  to  four  sixth  parts  in  trust  for  the  other  great  grand- 
children or  their  vendee  j  but  the  well  known  rule  "  that  he  who 
seeks  equity  shall  do  equity,"  clearly  applied  to  that  case. 
Those  entitled  to  their  proportions  of  the  old  right  to  unlocated 
lands,  could  have  no  just  claim  to  the  lands  located  under  it, 
Unless  they  paid  their  proportions  of  the  su-ms  advanced  in  lay- 


WELL. 


OF  PENNSYLVANIA  135 

ing  it,  and  securing  the  different  tracts  held  under  it.  Hence  it      1 805. 
was  that  after  the  evidence  was  fully  heard  a  juror  was  with-    p^^^ebT 
drawn  and  a  special  compromise  submitted  to.  It  was  finally         t>. 
referred  to  the  Judges  of  the  Supreme  Court  to  state  an  account    ^allo- 
of  all  expenditures  under  the  old  right  by  William  Peters^  and 
to  charge  him  with  all  profits  and  rents  and  sums  of  money  re- 
ceived, with  interest  on  the  several  sums,  and  upon  Cecil  pay- 
ing two  thirds  of  the  balance  in  three  months  it  was  agreed  that 
he  should  receive  a  conveyance  of  two  thirds  of  the  premises 
and  immediate  possession.  A  report  was  accordingly  made  on 
12th  April  1790,  that  Cecil  should  pay  1112/.  8.9.  Qd.  which  it 
was  not  the  interest  of  the  lessor  of  the  plaintiff  to  comply  with. 

The  circumstance  of  the  money  advanced  by  Mr.  Halloruell 
not  being  for  any  matter  or  thing  relative  to  the  trust  estate, 
forms  a  strong  and  marked  distinction  in  my  idea  between  the 
two  cases.  Nor  can  I  find  any  authority  on  the  best  search  I 
have  been  able  to  make,  wherein  trustees  have  been  allowed  out 
of  the  trust  fund  for  services  or  matters  done  or  monies  paid, 
wholly  unconnected  with  or  foreign  to  the  trust. 

The  case  is  made  stronger  when  we  consider  the  bankruptcy 
of  Greeves  and  the  other  facts  stated.  Though  the  precise  time 
of  Greeves*  committing  an  act  of  bankruptcy  is  not  specified, 
the  commission  against  him  issued  on  the  19th  November  1802. 
On  the  7th  August  and  2d  September  preceding,  Mr.  Hallowell 
paid  on  his  account  the  two  accommodation  notes  amounting 
to  1 1 50  dollars ;  but  it  was  not  till  after  Greeves  stopped  pay- 
ment, though  before  issuing  the  commission,  that  the  former 
told  him  that  he  would  keep  the  estate  in  question  until  he  was 
reimbursed  the  cash  he  had  advanced,  no  agreement  having 
been  previously  made  that  Mr.  Halloxuell  should  hold  the  pro- 
perty until  he  was  repaid.  Unless  the  defendant  had  a  previous 
Hen  or  some  valid  or  bindmg  agreement,  operating  either  le- 
gally or  equitably  as  such,  the  policy  of  the  law  interdicts  a 
bankrupt  from  giving  a  preference  to  any  of  his  creditors 
on  the  eve  of  a  bankruptcy.  The  act  of  Congress  of  the  4th 
April  1801,  in  section  12th,  exempts  mortgages  and  pledges 
from  the  general  operation  of  its  provisions;  it  contemplates  a 
system  of  perfect  equality  to  all  the  creditors  who  have  not 
used  the  precaution  to  secure  themselves;  and  it  therefore  fol 
)owF.  that  even  if  Greeves  after  he  had  stopped  payment,  had 


136  CASES  IN  THE  SUPREME  COURT 

1805.      assented  to  the  declinations  of  the  defendant  stated  in  the  case, 
"Ti  such  assent  could  not  leffallv"  take  effect. 

i'R\ZGK 

\,  Upon  the  whole,  let  my  feelings  as  an  individual  be  what 

Hallo-    they  may,  I  find  myself  constrained  to  declare  that  judgment 
^yELL.      should  be  entered  for  the  plaintiff  in  the  suit. 

Smith  J.  In  this  case  my  opinion  is  in  favour  of  the  defen- 
dant. 

I  consider  the  mortgage  as  if  it  had  never  existed,  and  that 
this  was  a  conveyance  of  the  estate  on  the  20th  August  1 800, 
the  day  on  which  the  assignees  of  jfohn  Shields  executed  the 
release  of  the  equity  of  redemption,  to  yo/m  Halloxvelln,  in  trust 
to  secure  a  debt  to  Thomas  Greeves;  or  rather  a  conveyance  in 
trust  for  Thomas  Greeves.  After  the  legal  estate  was  vested  in 
Holloxvell  in  trust,  he  lent  the  notes  in  question  to  Greeves^  and 
ultimately  paid  them  for  him. 

In  England  if  there  is  a  first  mortgagee,  and  then  a  second, 
and  the  first  lends  more  money  on  a  third  mortgage,  he  as  third 
mortgagee  shall  be  preferred  to  the  second,  because  it  shall  be 
presumed  that  he  lent  his  money  on  the  security  of  having  the 
first  mortgage.  Is  it  not  equally  reasonable  to  presume  in  this 
case,  that  the  defendant  lent  his  notes  to  Greeves.,  which  he 
afterwards  paid,  on  the  security  of  this  estate  being  conveyed 
to  him;  especially  as  it  is  not  stated  nor  contended,  that  there 
was  any  other  consideration  inducing  the  defendant  to  lend  the 
notes;  nor  that  he  took  any  counter  security  from  Greeves 
when  he  gave  him  the  notes. 

It  is  worthy  of  remark,  that  it  is  not  stated  that  the  defendant 
had  any  authority  from  Greeves  to  take  the  mortgage,  (if  it 
must  be  mentioned)  or  the  release  of  the  equity  of  redemption 
which,  joined  to  the  mortgage,  operated  as  a  conveyance.  If  he 
had  not,  the  principal  was  not  obliged  to  accept  such  convey- 
ance, and  by  taking  it  Halloxvcll  made  himself  liable  for  the 
debt.  It  is  not  stated  that  Greeves  ever  called  on  the  defendant 
to  release  the  trust  estate  to  him,  to  exonerate  him  from  such 
liability.  It  is  true  that  Greeves  afterwards  received  the  rents 
and  profits,  it  is  equally  true  that  the  deeds  remained  in  the 
possession  of  the  defendant. 

That  a  factor  has  a  lien  on  all  con-'agnments  for  the  general 
balance  due  to  him  from  his  principal,  is  settled  law;  and  I  con- 
fess I  cannot  distinguish  between  a  factor,  agent,  or  trii^tee^  as 


OF  PENNSYLVANIA.  137 

to  this  purpose;  each  advances  his  money,  each  is  presumed  to  1805. 
ad\ance  it  on  the  goods  pledge  or  security  in  his  possession.  pj^^^ER 
A.  borrows  200/.  on  the  pawn  of  jewels;  afterwards  he  bor-  ^. 
rows  of  pawnee  three  other  sums,  for  each  of  wliich  he  gives  Hallo- 
his  note  without  taking  notice  of  the  jewels.  Pawnor  diesj  his  ^^^^^ 
executors  shall  not  redeem  the  jewels  without  pacing  the 
money  due  on  the  notes;  for  it  is  natural  to  suppose  the  pawnee 
would  not  have  lent  those  sums,  but  on  the  pledge  he  had  in 
his  hands  before.  So  if  the  first  sum  had  been  secured  by 
mortgage.  Free.  Chan.  419.  It  is  a  rule  that  cestui  que  trust 
ought  to  save  trustee  harmless  as  to  all  dam:igcs  relating  to  the 
trust;  so  within  the  reason  of  that  rule,  where  the  trustee  has 
honestly  and  fairly,  without  any  possibility  of  being  a  gainer, 
laid  down  money  by  which  cestui  que  trust  is  discharged  irom 
being  liable  to  the  whole  money,  trustee  ought  to  be  repaid. 
Balsh  V.  Hifham.  (a)  I  have  ever  since  the  trial  of  CeciPs 
lessee  v.  Korbmaiiy  (Peters)  at  I'ork  Nisi  Prius,  June  1788, 
believed  this  lien  to  extend  to  trustees.  There  it  was  contended, 
that  the  inquiry  of  the  referees  should  be  confined  to  the  tract 
of  land  for  which  the  ejectment  was  Ijrought;  but  it  was  ruled 
by  the  court,  that  the  reference  should  be  general,  that  the  refe- 
rees should  settle  how  much  the  trustee  (Peters)  had  expended 
about  that  and  all  other  tracts,  as  to  the  two  thirds  of  which 
he  was  trustee,  under  the  purchase  from  Ambrose  Draper;  and 
that  upon  the  payment  of  the  general  balance  due  on  all, 
the  trustee  should  convey  to  Cecil  two  thirds  of  the  t-  act  in 
question. 

Brackenridce  J.  concurred  in  opinion  with  Smith  J.  and 
iiccordingly. 

Judgment  for  Defendant. 

»  2  P.  mn.i  455. 

Voi..  I  S 


158  CASES  Ix^J  THE  SUPREME  COURT 

1806. 


Satur.fa..  ,  ,  •      x  c  I    "^  ^-^^i 

Man  h  loth .  IM  A  N  N  II  A  R  D  T  CiflllUSt  O O  D  E  R  S  T  R  O  M  .     l_r.s.5M)', 


imparlance. 


A  state  A    CAPIAS  Vi^iwnrMc  to  September  term  1805  was  issued 

ciMirt  has  no     hX  ... 

jurisdiotioji    -*■  ^  against  the  dclendant,  b)-  which  he  was  arrested  and  held 
o\  a  suit        J.Q  h:\.\\.  A  declaration  was  filed  de  bene  esse  on  the  8th  Novem- 

apainst  a 

consul;  and  ber;  and  the  bail  bond  was  sued  to  December  term,  and  judg- 

Jl  .'^",^'■^5'"  mcnt  obtained.  Special  bail  was  entered  on  the  14th  Februarij 

ofjuiisdic-  1806,  and  on  the  20th  of  the  same  month  the  defendant's  attor- 

tion  IS  snjT-  jjgy  j^j^j  ^j^^^  following  suggestion  and  plea. 

court  will  "  Defendant  suggests  that  he  was  at  and  before  the  time  of 

quash  the      u  instituting  the  above  action,  and  since  that  time  has  continued 

proceedinps.  o  _  ' 

Itisnotne-  "  to  be  and  still  is  Consul  General  of  his  majesty  the  king  of 
U  shoiild'ir  "  '^^'^^^"»  'ri  the  United  States^  didy  admitted  and  approved  as 
b\  plea  be-  "  such  by  the  President  of  the  United  States.  That  being  such, 
lore  general  u  j^^  outrht  not  accordinor  to  the   constitution  and  law  of  the 

imnarlnnrp  o  o 

"  United  States  to  have  been  impleaded  in  the  said  Supreme 
''  Court,  but  in  the  District  Court  of  the  United  States  in  and 
''  for  the  district  of  Femisylvania,  or  in  some  other  District 
"  Court  of  the  said  United  States.  And  under  protestation  that 
"  this  court  has  not  jurisdiction,  and  of  right  ought  not  to  take 
"  to  itself  the  cognisance  of  this  case,  he  pleads  non  assumpsit 
*'  and  payment,  with  leave  &c."  On  the  3d  March  1 806  a  rule  was 
obtained  by  the  defendant  to  shew  cause  why  the  proceedings 
should  not  be  quashed;  and  upon  the  return  of  the  rule  it  was 
proved  that  he  had  in  various  instances  submitted  to  suits  and 
executions  from  this  court. 

Frazer  and  Ingersoll  then  proceeded  to  shew  cause.  They  ar- 
gued that  the  application  of  the  defendant  was  defective  in  form, 
and  out  of  time;  and  that  he  should  have  pleaded  regularly  and 
in  proper  time  to  the  jurisdiction  of  the  court.  There  is  a  v/ide 
difference  between  courts  of  a  general  jurisdiction,  and  courts  of 
a  limited  jurisdiction.  If  the  latter  discover  at  any  stage  of  the 
proceedings  that  they  have  no  jurisdiction,  they  are  under  the 
necessity  of  arresting  the  suit;  this  is  particularly  the  case  with 
the  federal  courts.  But  if  the  former  have  a  jurisdiction  of  the 
cause  of  action,  the  want  of  jurisdiction  arising  from  a  personal 
privilege  of  the  defendant  can  never  be  averred,  but  by  a  regular 
pica.  The  rules  which  regulate  the  order  of  pleading  can  havr 


STROM. 


OF  PENNSYLVANIA.  139 

no  operation  unless  this  distinction  be  sound;  and  they  settle      1806. 
the  law  that  if  the  defendant  pleads  to  the  action  he  admits  the     jy/r .  j^-j^l 
jurisdiction,  and  that  if  he  docs  not  in  proper  person  and  before     hard.t 
general  imparlance  plead  to  the  jurisdiction,  his  time  is  gone.         ^'• 
1  Tidd  584.  This  privilege  of  being  sued  in  the  District  Court,    ^°^^f/ 
if  it  exists,  is  personrd  to  the  consul;  he  may  waive  it  or  claim, 
it,  as  he  pleases;  and  if  his  submission  to  the  process  and  execu- 
tion of  this  court  in  other  cases  is  not  such  a  waiver  as  prevents 
him  from  setting  it  up  afterwards,  it  shews  at  least  that  it  rests 
with  him  to  use  it,  and  should  therefore  be  subject  to  all  those 
rules  which  control  the  exercise  of  personal  privileges.  The 
jurisdiction  of  a  court  with  powers  so  general,  and  manifestly 
competent  to   the   cause   of  action,   is   not    to   be  ousted  by 
suggestion. 

But  the  authority  of  tlie  District  Court  in  this  case  is  not  ex- 
clusive. "  The  judicial  power  shall  c^^c^e/iff  to  all  cases  in  law 
"  and  equity  arising  under  this  constitution,  the  laws  of  the 
"  United  States^  and  treaties  made  or  to  be  made  under  their 
"  auihoritv;  to  all  cases  affecting  ambassadors,  other  public  min- 
"  isters,  and  C'on;iuL-  Jkc."  Const.  U.  S.  Art.  3.  sec.  2.  Do  these 
words  exclude  the  authority  of  the  state  courts  ?  If  they  do  not, 
it  follows  that  tiiis  court  has  a  concurrent  jurisdiction  of  the 
cause,  because  it  possessed  it  at  the  adoption  of  the  constitutionr 
Now  a  delegation  of  exclusive  authority  to  the  union  can  be 
produced  only  in  one  of  three  ways;  1st,  by  express  words;  2d; 
by  a  prohibition  of  the  like  authority  to  the  states;  3d,  by  an  in- 
compatibility between  the  authority  granted  to  the  union,  and  a 
reservation  of  it  to  the  states.  Here  are  no  express  terms,  no 
prohibition,  not  the  least  incom])ati!)ilily.  The  words  are  satis- 
fied by  a  concurrent  authority.  It  follows  that  the  jurisdiction 
of  the  state  courts  remains.  But  congress  have  proceeded  to 
legislate  under  this  article.  It  is  their  warrant.  They  may  go  to 
a  less  extent  than  it  authorizes,  but  certainly  no  further;  and 
their  law  is  of  course  to  be  tested  by  it,  and  to  stand  or  fall  as 
the  authority  has  or  has  not  been  closely  pursued.  In  the  9th 
section  of  the  act  to  est.iljlish  the  judicial  courts  of  the  United 
Stafesy  Congress  enact  that  "  the  District  Courts  shall  have  ju- 
"  risdiclion  exclusively  of  the  courts  of  the  several  states,  of  all 
**  .suits  ag-ainst  consuls  or  vice  consuls,  except  for  offences  above 
•  the  dcucript'ion  aforesaid-^''  1  U.  S.  Laxus  54.;  that  is,  except 
where  a  punishment  exceeding  thirty  slrij)es,  a  fine  exceeding 


140  CASES  IN  THE  SUPREME  COURT 

1806.      one  hundred  dollars,  or  a  term  of  imprisonment  exceeding  six 

]yi^~~~  months,  is  to  be  inllicted.  The  suhji-cts  of  judicial  cognisance 

HARDT     in  this  section  are  causes  of  admiralty  and  maritime  jurisdiction, 

■''•         torts,  and  crimes;  and  there  are  no  words  to  embrace  causes 

^      '   '    whicli  arise  upon  contracts.  The  reasonable  construction  there- 

STROM.       r  ■         1  r        ■ 

fore  is,  that  exclusive  jurisdiction  is  given  of  suits  against  con- 
suls for  offences  only;  and  this  is  fortified  by  the  deviation  from 
the  usual  language  of  the  act,  in  speaking  of  suits  against  con- 
suls, and  not  of  suits  to  which  a  consul  is  a  party;  and  by  the 
exception,  which  as  it  relates  to  criminal  matters  alone,  was 
probably  used  to  qualify  the  grant  of  criminal  jurisdiction.  The 
Supreme  Court  of  the  United  States  moreover  has  original  juris- 
diction of  civil  controversies  which  affect  consuls,  and  the  Circuit 
Courts  have  cognisance  concurrent  with  the  state  courts  of  all 
civil  suits  where  an  alien  is  a  party.  It  is  in  these  parts  of  the 
law  that  we  see  a  forum  erected  for  civil  suits  in  which  consuls 
are  concerned,  and  they  furnish  an  additional  proof  that  the  9th 
section  relates  in  this  particular  only  to  offences.  A  consul  is 
not  entitled  to  the  privileges  of  a  public  minister,  and  there  can 
be  no  national  policy  in  giving  him  at  all  times  the  election  of  a 
federal  court.  We  must  presume  the  intention  of  Congress  to 
have  been  constitutional,  and  construe  their  laws  accordingly? 
but  if  they  have  manifestly  excluded  the  state  courts,  they  have 
exceeded  their  constitutional  power,  and  so  far  as  concerns  the 
state  courts,  their  law  is  void. 

•^  Duponceau  and  Levy  in  support  of  the  rule,  agreed  the  law 
that  where  a  court  has  general  jurisdiction,  and  a  defendant  has 
privilege  to  be  sued  in  another  court,  he  must  make  his  applica- 
tion in  proper  time  and  form;  but  this  was  not  the  personal  privi- 
lege of  the  consul.  It  was  the  interest  of  the  United  States  and  a 
part  of  their  policy,  that  ambassadors,  public  ministers,  and  con- 
suls, should  be  subject  to  the  judicial  power  of  the  United  States 
alone;  and  the  station  assigned  in  the  constitution  to  consuls,  who 
:fre  placed  by  the  side  of  persons  privileged  by  the  law  of  nations, 
is  a  proof  of  the  consideration  in  which  that  character  is  held: 
Indeed  under  the  former  treaty  with  France  the  consuls  of  that 
government  exercised  in  certain  cases  a  judicial  power.  This  is 
a  case  then  in  which  the  defendant  docs  not  claim  privilege 
personal  to  himself;  it  is  the  privilege  of  his  nation  and  of  the 
United  States:  and  if  the  fact  of  his  official  character  appears  on 


HARDT 


STROM. 


OF  PENNSYLVANIA.  141 

ihe  record,  not  even  his  consent  can  give  this  court  jurisdiction.      1806. 
In  the  cases  between  this  defendant  and  other  plaintiffs,  the  fact     ~. 
uid  not  appear;  and  this  is  a  sumcient  answer  to  them. 

The  true  construction  of  the  9th  section  of  the  judiciary  act  v. 
is  that  the  District  Court  has  jurisdiction  in  o//c/t;f/ suits  against  Soder- 
consuls,  exclusivelv  of  the  state  courts;  and  the  like  exclusive 
jurisdiction  of  suits  for  offences  of  a  certain  grade.  Of  the  higher 
offences  the  Circuit  Courts  have  jurisdiction  exclusive  of  the 
state  courts,  and  concurrent  with  the  Supreme  Court  of  the 
United  States;  United  States  v.  Ravara;  (jci^)  of  the  civil  contro- 
versies these  courts  have  a  jurisdiction  concurrent  with  the 
District  Court;  so  that  the  state  courts  alone  are  excluded;  and 
this  reconciles  all  difficulties.  That  Congress  intended  to  give 
the  District  Courts  exclusive  jurisdiction,  is  therefore  evident^ 
and  the  remaining  question  is  whether  they  had  a  right  so  to 
do.  Now  the  delegation  of  this  exclusive  authority  by  Congress 
has  been  acquiesced  in  fifteen  years,  and  never  judicially  ques- 
tioned. It  flows  from  the  language  of  the  constitution;  for  if 
the  judicial  power  extends  to  the  case  of  a  consul,  the  United 
States  have  a  right  to  indicate  all  the  qualifications  under  which 
it  shall  extend.  The  power  to  establish  an  uniform  rule  of  natu- 
ralization has  always  been  deemed  exclusive.  But  there  is  an- 
other source  of  exclusive  jurisdiction  in  the  federal  courts,  in 
addition  to  those  mentioned  by  the  plaintiff's  counsel;  that  is, 
where  the  cases  upon  which  the  jurisdiction  attaches,  .^'rcry  out 
of  the  constitution.  2  Federalist  245.  In  such  cases  there  was 
no  preexisting  authority  in  the  states,  for  the  cases  did  not  exist, 
and  of  course  that  amendment  which  reserves  to  the  states  or 
the  people  the  powers  not  granted  by  the  constitution,  has  no 
application  to  them.  Over  tliese  there  can  be  no  doubt  that 
Congress  may  delegate  exclusive  authority  to  their  courts;  and 
such  are  the  cases  of  amijassadors, public  ministers,  and  consuls. 
The  federal  courts  having  this  exclusive  jurisdiction,  it  is 
never  too  late  to  claim  the  benefit  of  the  fact  before  the  state 
court.  If  it  appears  in  evidence  on  the  trial  of  the  general 
issue,  the  court  will  take  notice  of  it.  2  IVoodeson  273.  Snells. 
^nussatt  (/>>),  Le  Caux  \.  Eden  (c). 

(n)  2  Dall.  297  (b)  Ct.  Ct.  U.  S-  (e)  Doug.  57^ 


142  CASES  IN  THE  SUPREME  COUKi 

1806.  TilghmanC.  J.  now  delivered  the  opinion  of  the  courtr 

Mann-         This  is  an  action  on  the  case  on  a  bill  of  exchange  drawn  by 
HAHDT     the  defendant,  who  appeared  and  pleaded  the  general  issue;  at 
o      '         the  same  time  entering  a  protest  against  the  court's  jurisdiction, 
STBOM.    verified  by  his  oath,  in  which  he  averred  that  at  the  time  of  is- 
suing the  writ  in  this  cause  he  was,  and  still  is  consul  general 
of  his  majesty  the  king  of  Sii'eden,  in  the  United  States  oi  Ame- 
rica. The  defendant's  counsel  have  now  brought  the  point  of 
jurisdiction  before  the  court,  by  a  motion  to  quash  the  writ; 
and  it  is  confessed  by  the  counsel  for  the  plaintiff  that  the  de- 
fendant's allegation,  that  he  is  consul  general  of  the  king  of  Swe- 
den^ is  true. 

Before  I  proceed  to  deliver  the  opinion  of  the  court  on  the 
main  question,  it  will  be  necessary  to  take  notice  of  one  or  two 
objections  of  the  plaintiff 's  counsel  which  relate  to  other 
points. 

They  have  placed  some  reliance  on  the  circumstance  of  the 
defendant's  having  submitted  to  suits,  judgments,  and  execu- 
tions, in  many  instances;  which  they  have  proved  by  the  records 
of  this  court,  and  the  Common  Pleas.  In  answer  to  this  objec- 
tion, it  need  onlv  be  observed,  that  in  those  cases  it  did  not  ap- 
pear on  the  record  that  the  defendant  was  a  consul,  and  there- 
fore the  court  could  take  no  notice  of  it. 

They  have  also  urged  that  the  defendant  is  too  late  in  except- 
ing to  the  court's  jurisdiction  after  pleading  the  general  issue; 
and  cases  have  been  cited  on  this  head  from  the  English  books 
of  practice.  In  answer  to  this  objection  it  is  sufficient  to  say, 
that  by  the  established  practice  both  in  the  courts  of  this  state 
and  of  the  United  States^  the  court  will  put  a  stop  to  the  proceed- 
ings in  anv  stage  on  Its  being  shewn  that  they  have  no  jurisdic- 
tion. In  the  cast  s  ol  Dnncanson  v.  Mavlure  in  this  court,  and  of 
SncUx.  Faussatt  iu  the  Circuit  Cv)urt  of  the  Ur.ited  States  be- 
fore Judge  Washington^  a  defect  of  jurisdiction  appearing,  in 
the  opinion  of  the  defendant's  counsel,  on  the  evidence  given  on 
the  trial  of  the  general  issue,  the  point  of  jurisdiction  was  urged, 
and  neither  the  counsel  for  the  plaintiff,  nor  the  court,  suggested 
that  there  was  any  impropriety  in  going  into  the  argument. 

These  previous  points  l)eing  disposed  of,  I  will  consider  the 
merits  of  the  defendant's  motion,  which  will  depend  upon  the 
constitution  of  the  United  States^  and  the  "  Act  to  establish  the 


I 


OF  PENNSYLVANIA. 

'' jifdicial  courts  of  the  United  States^''''  passed  24i\i  Sefitoiiber 
1 789,  and  commonly  called  the  judiciary  act.  By  the  2d  section  " 
of  the  3d  article  of  the  constitution,  it  is  declared  that  "the 
"judicial  power  shall  extend  to  all  cases  inlaw  and  equity  uris- 
•'  ing  under  this  constitution,  the  laws  of  the  United  States^  and 
"  treaties  made  or  Avhich  shall  be  made  under  their  authority; 
"  to  all  cases  affecting  ambassadors,  other  public  ministers,  and 
"  consids,  to  all  cases  of  admiralty  and  maritime  jurisdiction, 
*'  to  controversies  to  which  the  United  States  shall  be  party,  to 
"  controversies  between  two  or  more  states,  between  a  state  and 
"  citizens  of  another  state,  between  citizens  of  different  states, 
"  between  citizens  of  the  same  state  claiming  lands  under  grants 
"  of  different  states,  and  between  a  state  or  the  citizens  thereof 
"  and  foreign  states,  citizens  or  subjects." 

"  In  all  cases  affecting  ambassadors,  other  public  ministers,, 
"  and  consuls^  and  those  in  which  a  state  shall  be  party,  the  Su- 
"  preme  Court  shall  have  original  jui-isdiction;  in  all  the  other 
"  cases  before  mentioned,  the  Supreme  Court  shall  have  appel- 
*'  late  jurisdiction  both  as  to  law  and  fact,  with  such  exceptions 
"  and  under  such  regulations  as  the  Congress  shall  make." 

It  is  now  sixteen  years  since  the  courts  of  the  United  Statca 
have  been  organized,  and  during  that  time  the  construction  of 
the  article  relating  to  the  judicial  power,  has  been  frequently- 
considered.  Many  principles  have  been  established,  by  which 
we  are  bound.  In  conformity  to  those  principles  we  are  to  un- 
derstand, that  by  the  expressions  "  the  judicial  power  shall  e.v- 
"  tend''"'  to  the  cases  enumerated  in  the  section  above  mentioned, 
Congress  became  invested  widi  the  right  of  assuming  the  exclu- 
sive jurisdiction  for  their  courts;  but  in  those  of  the  said  enu- 
merated cases,  where  the  state  c(jurts  had  jurisdiction  prior  to 
the  adoption  of  the  constitution,  and  where  the  acts  of  Congress 
have  not  vested  an  exclusive  jurisdiction  in  their  own  courts, 
the  courts  of  the  several  states  retain  a  concurrent  jurisdiction. 
Thus  in  cases  of  "  admiralty  and  maritime  jurisdiction,"  the 
courts  of  tl:c  United  States  have  always  exercised  an  exclusive 
jurisdiction,  and  in  disputes  between  "  citizens  of  different; 
"  states"  they  have  exercised  a  jurisdiction  concurrently  with 
the  state  courts.  And  yet  in  both  cases  the  judicial  power  of  the 
courts  of  the  United  Slcttcs  is  founded  on  the  same  expression 
in  the  constitution,  that  is  to  sav,  that  the  judicial  power  {«f  tlir 


145 
1806. 


Mann- 

HARDT 

1'. 
SoDER- 
STROM. 


144 


CASES  IN  THE  SUPREME  COURT 


1806. 


Mann- 

HARDT 

SODEU- 
STROM. 


United  States  shall  extrend  ^c.  to  those  two  cases  among  others 
that  arc  enumerated  in  the  same  paragraph. 

It  being  then  established  that  Congress  had  aright  to  assume 
an  excUisive  jurisdiction  "  in  all  cases  aflecting  consuls,"  let  us 
see  what  provision  they  have  made  upon  that  subject  by  their 
laws. 

The  9th  section  of  the  judiciary  act  ascertains  the  jurisdic- 
tion of  the  District  Courts  of  the  United  States .  (a) 

In  the  first  parts  of  this  section,  jurisdiction  is  given  to  the 
District  Courts  in  various  matters  both  of  a  criminal  and  a 
civil  nature,  in  some  of  which  their  jurisdiction  is  exclusive  of 
the  state  courts,  and  in  others  concurrent  with  them.  Towards 
the  latter  part  of  the  section  the  District  Courts  are  vested  with 
jurisdiction  "  exclusively  of  the  courts  of  the  several  states,  of 
"  all  suits  against  consuls  or  vice  consuls  except  for  offences 
"  above  the  description  aforesaid."  The  word  suits  includes 
those  both  of  a  civil  and  criminal  nature;  and  the  exception  of 
"  offences  above  the  description  aforesaid"  refers  to  a  descrip- 
tion in  the  first  part  of  this  section,  viz.  offences  where  no  other 
punishment  than  whipping  not  exceeding  thirty  stripes,  a  fine  not 
exceeding  100  dollars,  or  a  term  of  imprisonment  not  exceeding 
six  months,  is  to  be  inflicted. 

It  is  to  be  remarked  that  the  jurisdiction  of  the  District 
Courts  in  suits  against  consuls  or  vice  consuls  is  exclusive  of 
the  state  courts,  but  not  exclusive  of  the  courts  of  the  United 
States;  because  the  second  section  of  the  third  article  of  the 
constitution  had  provided  that  "  in  all  cases  affecting  ambassa- 
•'  dors,  other  public  ministers,  and  consuls,  the  Supreme  Court 
*■'  shall  have  original  jurisdiction."  Accordingly  it  is  enacted  by 
the  thirteenth  section  of  the  judiciary  act,  that  the  Supreme 
Court  of  the  United  States  shall  have  "original  but  notexclu- 
"  sive  jurisdiction  of  all  suits  in  which  a  consul  or  vice  consul 
*'  shall  be  a  party." 

Then  the  ninth  and  thirteenth  sections  of  the  judiciary  act  are 
consistent  with  each  other  and  with  the  constitution;  and  in 
suits  against  consuls  and  vice  consuls  the  jurisdiction  of  the 
state  courts  is  excluded.  Nor  are  we  to  wonder  at  this  pi'ovi- 
sion.  One  considerable  object  of  our  federal  constitution  was 
to  vest  in  the  United  States  the  administration  of  those  affairs 


(fl)  1  U.  S.  La-US  .53,  5'i. 


STROM. 


OF  PENNSYLVANIA.  145 

by  which  we  are  related  to  foreign  nations.  Consuls,  although      jgoe. 

not  entitled  to  the  privilege  of  ministers,  often  exercise  very  im-  — 

portant  functions;  and  it  is  remarkable  that  in  the  constitution     ^j^j^jj^ 
thev  are  mentioned  in  conjunction  with   "  ambassadors   and         -u. 
"  other  public  ministers;"  and  like  them  they  enjoy  the  impor-     Soder- 
tant  privilege  of  commencing  suits  in  the  Supreme  Court  of  the 
United  States.  It  was  wise  therefore  to  protect  them  from  suits 
in  the  state  courts,  although  they  are  left  at  liberty  to  bring  ac- 
tionsj^g^ipst  other  persons  in  those  courts,  if  they  find  it  con- 
veniens and  choose  to  do  so. 

Upon  the  whole  the  court  are  of  opinion,  that,  it  appearing  on 
the  record  that  this  suit  is  against  the  consul  general  of  the  king 
of  Sweden^  their  jurisdiction  is  taken  away  by  the  ninth  section 
of  the  judiciary  act,  and  consequently  the  proceedings  against 
ihe  defendant  must  be  quashed. 

Proceedings  quashed. 


Hoar  as^ainst  Mulvey. 

"  Saturday, 

Match  15th. 
r\U PONCEAU  upon  a  former  day  obtained  a  rule  upon  the-pi^p^j^^jj^y-^ 

plaintiff,  to  shew  cause  whv  there  should  not  be  a  new  of  a  party 

trial;  and  upon  the  argument,  he  now  offered  to  the  court  the„j.j;„„jj  j-,,^  ^ 

same  affidavit  of  the  defendant  upon  which  he  obtained  the 'I'li'  to  shew 
.  cause,  but  it 

*''^''^'  caiirKJt  be 

heard  upon 

S.  Levy  for  the  plaintiff  opposed  it  as  being  contrary  to  the  jp^n^  y,i  t,h« 
invariable  practice  of  the  court.  '"'«• 

Per  Curiam.  The  affidavit  of  the  party  is  frequently  used 
to  lay  a  foundation  for  a  rule  to  shew  cause;  but  it  has  uni- 
formly been  the  practice  of  the  court,  to  refuse  hearing  it  upon 
the  argument  on  that  rule.  He  must  produce  proofs  from  » 
different  quarter. 


Vo;..  I.  i 


146  CASKS  IN  THE  SUPREME  COURT 

lb  HO 
3b  ti2 
Hsr233 
13s t 121 
13s 1 384 
lws306 
3ws469 
7      73 


1806. 


Sfitiirtiav,  Woods  (urainst  Ingersoll  and  Dallas. 

Mard,  22cl.  '^  ^ 


It  is  not        'T^HIS  actum  was  brought  by  the  deputy  surveyor  of  Becf- 

essential  to 


'T^HISa 
thc'"valklhv  J^''^^  couiity,  to  recover  from  the  defendants  the  fees  due 

ot  a  survey  for  surveying  one  hundred,  and  fifteen  tracts  of  land  of  four 
Tands  Ihat  ^^""dit^d  acres  each,  at  the  rate  of  9  dollars  53  cents  the  tract; 
the  lines  of  which  is  the  full  legnl  charge,  deducting  the  fee  for  plot  and 
shoultf  be  r*-*turn,  which  the  plaintiiT,  in  consequence  of  the  dt^feefrdants' 
marked  on  refusal  to  pay,  had  never  made.  It  was  proved  upon  thl'^*  trial, 
It  1s^9^i"ffi"  ^^^^*  *^^  plaintiff  or  his  assistant  had  gone  upon  the  lands  and 
cieiit  if  the  had  laid  the  warrants,  some  of  M'hich  were  leading  warrants 
mariiccnines  ^"'^  ^^^  ^^"^^  adjoining,  according  to  the  description  of  township 
ciiouc^h  to  and  countv  therein;  though  in  some  instances  the  lands  neces- 
ilie'D.rticii-  sarily  ran  into  another  township.  The  survey  was  made  as  the 
lar  tracts;     surveys  of  company  lands  are  usually  made,  by  running  the  ex- 

jiit  unless     ^gj,jQj.  jj^gg  Qf  t},g  whole  bodv;  but  the  cross  lines  of  the  particu- 

iie  marks  ail  '  . 

ilie  lines,  he  iar  tracts  were  not  run.  In  fact,  the  defendants  had  been  gi'ossly 

titk"l  t*o"th    defrauded  by  a  person,  who  had  led  them  to  locate  by  their 
full  compen- warrants  an  immense  tract  of  mountain,  on  which  it  was  im- 
sation  given  p^ggji^ig  (q  j-^j^  certain  of  the  division  lines;  but  the  plaintiff  was 
not  implicated  in  this  deception.   In  the  ninth  section  of  the 
same  law  which  fixes  the  surveyors'  fees,  the  mode  of  making 
the  survey  is  directed  as  follows:  "  Every  survey  hereafter  to 
"  be  returned  into  the  land  office  of  this  state,  upon  any  warrant 
"  which  shall  be  issued  after  the  passing  of  this  act,  shall  be 
"  made  by  actual  going  upon  and  measuring  of  the  land,  and 
"  mariinq-  the  lines  to  be  returned  upon  such  warranty  after  the 
"  warrant  authorizing  such  survey  shall  come  to  the  hands  of 
"  the  deputv  surveyor,  to  whom  the  same  shall  be  directed; 
'*  and  every  survey  made  theretofore,  shall  be  accounted  clan- 
"  destine,  and  shall  be  void  and  of  no  effect  whatever."  2  St. 
Laxvs  316.  April  8th  1785.  The  warrants  of  the  defendants 
were  issued  under  the  act  of  3d  April  1792,  and  came  within 
the  provisions  of  the  above  section.  The  cause  was  tried  before 
7'eates  and Bracienric/g-e  Justices,  m December  1805.  The  dedla- 
ration  contained  three  counts;  the  first  for  work  and  labour 
done  and  materials  furnished  at  the  defendants'  request;  the 
second  upon  a  (quantum  meruit;  the  third  upon  an  insimul  com- 
putassent;  and  the  jury  found  a  verdict  generally  for  the  plain- 
tiff, for  his  whole  demand  without  interest. 


OF  PE^"NSYLVANIA.  1 47 

A  motion  was  made  by  the  defendants  for  a  new  trial;  which      1806. 
now  came  on  to  be  arcued  by  Dallas  and  In^ersoll  for  the  "TTj 
defendants,  and  by  Morgan  and  Raxvle  for  the  plaintiff. 


The  defendants'  counsel  objected  to  the  verdict  upon  two 
grounds:  First,  That  the  plaintiff  was  entitled  to  nothing,  be- 
cause the  survey  was  not  made  in  conformity  with  the  act  of 
Assembly,  aixi  therefore  void.  Secondly,  That  at  all  events,  the 
whole  duty  enjoined  by  that  act  had  not  been  performed,  and 
therefore  entire  fees  could  not  be  due. 

This  survey  consisted  in  marking  certain  of  the  external 
trees,  which  could  not  possibly  constitute  more  than  one  line  oi 
a  large  proportion  of  the  tracts.  The  object  of  the  law  was  to 
guard  against  the  confusion  which  results  from  such  a  survey, 
by  requiring  each  tract  to  be  designated  by  its  own  peculiar 
limits;  whereas  in  this  survey  all  the  interior  or  central  tracts 
are  without  line  or  corner,  and  can  be  traced  only  from  th« 
leading  warrant.  It  is  such  a  survey  as  the  law  declares  to  be 
of  no  effect;  a  patent  cannot  be  obtained  upon  it;  and  the  sur- 
veyor can  be  entitled  to  no  compensation  for  services  which  are 
not  in  conformity  with  the  law. 

At  all  events,  the  jury  have  given  too  much;  for  the  entire 
fees  are  due  only  for  the  entire  duty.  Now  w  hatevcr  may  be 
the  effect  of  omitting  to  mark  the  cross  lines  of  the  whole  body, 
that  is,  the  lines  of  each  tract,  most  clearly  the  law  directs  it; 
it  is  a  part  of  the  surve}'or's  duty;  his  fee  is  regulated  with 
reference  to  it;  and  if  he  fails  to  do  it,  his  compensation  must 
be  diminished  accordingly. 

It  was  answered  by  the  counsel  for  the  plaintifl,  that  the  law 
of  1785  embraced,  in  the  section  referred  to,  two  distinct  ob- 
jects; the  one  the  nioclc  of  making  a  survey,  and  the  other  tin- 
time  of  making  it.  With  respect  to  the  fust,  it  is  merely  direc- 
tory to  the  deputy  surveyors,  and  no  penalty  is  provided  for  the 
neglect  of  the  direction;  but  with  respect  to  the  latter,  which 
was  a  source  of  fraud  upon  the  warrant  holder,  the  law  is  deci- 
sive in  the  penalty  it  affixes  to  disobedience,  and  declares  that 
every  survey  made  before  the  warrant  comes  to  the  hands  of 
the  deputy  surveyor  shall  be  accounted  clandestine  and  void. 
\\"\\\\  this  latter  clause  our  case  has  no  connexion.  If  we  have 
riot  complied  with  the  former,  we  have  still  done  enough.  The. 


X'. 

Inger- 

SOM  . 


148  CASES  IN  THE  SUPREME  COURT 

1806.      survey  was  proved  to  have  been  made  in  the  usual  manner: 

"TT.        I     patents  have  been  invariably  granted  upon  such  surveys,  and  to 

■,,.         disturb  them  would  be  to  shake  innumerable  titles  in  Pennsyl' 

Inger-    vania.  Sufficient  has  been  done  to  indicate  any  one  of  the  one 

soLL.      hundred  and  fifteen  tracts,  both  as  to  quantity  and  position, 

with  perfect  clearness,  and  this  is  the  sole  use  of  a  survey. 

If  we  are  entitled  to  any  thing,  we  are  entitled  to  the  sum 
found.  Our  claim  is,  in  fact,  for  a  (Quantum  meruit,  of  which 
the  jury  are  the  proper  judges;  and  they  have  acted  with  great 
liberality  to  the  defendants,  in  allowing  no  interest  upon  a  debt 
that  has  been  due  and  unsatisfied  for  many  years. 

TiLGHMAN  C.  J.  This  is  an  action  brought  by  the  plaintiff 
against  the  defendants  for  his  services  as  a  deputy  surveyor  in 
surveying  115  tracts  of  400  acres  each.  The  plaintiff's  charge 
was  9  dollars  33  cents  for  each  tract,  which  is  the  full  legal 
charge;  that  is,  ten  dollars  a  tract,  deducting  five  shillings,  the 
fee  for  the  plot  and  return,  because  the  surveys  were  not  re- 
turned by  plaintiff.  He  held  back  the  return  until  his  fees 
should  be  paid  him. 

The  jury  found  for  the  plaintiff  1073  dolls.  33  cents,  being 
the  full  amount  of  his  claim  without  interest. 

From  the  report  of  the  judges  who  sat  on  the  trial  of  the 
cause,  I  take  for  granted  that  the  evidence  warranted  the  con- 
clusion that  although  the  external  lines  of  the  whole  body  of 
land  were  run,  so  as  to  enable  the  plaintiff  to  ascertain  not  only 
the  whole  quantity  but  also  the  quantity  of  each  particular  tract, 
yet  the  cross  lines  dividing  the  several  tracts  from  each  other, 
were  not  run. 

By  the  act  of  Assembly  fixing  the  fees  of  the  deputy  survey- 
or, it  is  enacted  as  follows  in  the  9th  section:  "  Ever)'  survey 
"  hereafter  to  be  returned  into  the  land  office  of  this  state  upon 
'*  any  warrant  which  shall  be  issued  alter  the  past.ing  of  this 
"  act,  shall  be  made  by  actual  ^oing"  upon  and  measuring-  of  the 
"  /a7id,  and  marking  the  li?ies  to  br  returned  on  such  warrant, 
"  after  the  warrant  authorizing-  .such  survey  f>hall  come  to  the 
*'  hands  of  the  deputy  surveyor  to  whom  the  same  shall  be  di- 
"  rected;  and  every  survey  made  theretofore  shall  be  accounted 
"  clandestine,  and  shall  be  void  and  of  no  effect  whatsoever." 
«th  April  1785.  2  St.  Laws.  316. 


OF  PENNSYLVANIA.  149 

The  mode  of  making  the  survey  is  directed  in  the  former      1806. 
part  of  this  section,  that  is,  by  actual  going  upon  and  measuring  ~^^~^^ 
the  land  and  marking  the  lines;  the  latter  part  of  the  section         -d, 
goes  further,  and  declares  that  unless  the  survey  is  made  after     Inger- 
the  warrant  comes  to  the  hands  of  the  deputy  surveyor,  it  shall       *oll. 
be  absolutely  void.   So  that  although  the  directing  part  of  the 
section  is  not  strictly  complied  with,  still  the  survey  may  be 
sufficient  to  entitle  the  warrantee  to  a  patent,  provided  the  sur- 
veyor has  been  upon  the  ground  and  run  lines  sufficient  to  iden- 
tify- the  tract,  and  ascertain  the  quantity  contained  in  it.  I  men- 
tion this,  because  it  has  been  insinuated,  although  the  point  was 
not  formally  made,  that  perhaps  the  surveys  made  by  the  plain- 
tiff were  void,  inasmuch  as  all  the  lines  of  each  tract  were  not 
run  and  marked.   I  understand  that  the  construction  which  I 
have  put  upon  the  9lh  section  of  the  act  of  Assembly  in  ques- 
tion, has  always  been,  as  it  still  is,  held  by  all  the  Judges  of  this 
Court:  and  it  is  of  consequence  that  there  should  be  no  misun- 
derstanding on  the  point,  as  the  titles  of  a  vast  number  of  per- 
sons, who  have  taken  up  lands  from  the  commonwealth  and 
paid  for  them,  would  be  shaken  by  a  contrary  opinion. 

But  although  the  surveys  made  by  the  plaintiff  for  the  de- 
fendants may  not  be  void,  yet  as  he  has  failed  in  his  duty  plain- 
ly prescribed  by  law,  he  cannot  be  entitled  to  the  whole  of 
those  fees  which  are  established  bylaw, for  services  which  are 
but  in  part  performed.  Although  the  defendants  may  receive 
th;ir  patents  on  the  return  of  the  surveys,  they  may  be  under 
the  necessity  afterwards  of  running  and  marking  those  lines, 
which  ought  to  have  been  run  and  marked  by  the  plaintiff;  and 
this  will  occasion  an  additional  expense.  It  is  true  the  jury 
gave  the  plaintiff  no  interest,  but  that  is  not  a  sufficient  reason 
why  there  should  not  be  a  new  trial;  because,  if  the  delay  of  pay- 
mf-ni  has  been  occasioned  by  his  demanding  more  than  he  was 
cutitltd  to,  he  would  not  be  entitled  to  interest  for  what  might 
be  nail)  due  to  him. 

I  am  of  opinion  therefore  that  the  jury  did  wrong  in  giving 
the  pl;iintiff  his  whole  claim.  The  justice  of  the  case  requires  a 
new  trial. 

Yeatfs  J.  I  much  regret  that  I  cannot  concur  in  the  opinion 
which  has  been  delivered,  and  peculiarly  so  upon  the  ground 
that  I  am  abundantly  satisfied  our  respectable  brothers  have 


150  CASES  IN  TH1-:  SUFREAIK  COLRT 

1806.      f^c^^n  grossly  defrauded  in  this  speculation  b)'^  the  person  who 
Woods     *^""'s^^<^-f^  them  the  locations.  If  the  plaintiflThas  not  pavticipa 
7,.         ted  therein,  the  sins  of  Dr.  yamcx  Hamilton  cannot  be  visited 

Inger-    upon  him. 

•>OLi..  jj  ^yjjg  proved  on  the  trial  that  the  warrants  were  put  into  the 

plaintiff's  hands  to  be  executed  at  the  instance  of  the  defend- 
ants, and  that  he  was  urged  by  one  of  them  to  use  dispatch  on 
their  land  warrants.  3Iat.  Taylor  swore  that  he  sui-vevcd  forty 
six  of  the  tracts  by  actuall}'  going  on  the  land  and  surveying  the 
tracts  as  is  usual  in  the  case  of  Company  lands,  and  that  there- 
were  no  other  lands  vacant  which  suited  the  description  of  the 
warrants;  but  he  did  not  answer  the  question  as  to  running  and 
marking  the  intermediate  lines.  From  the  posts  expressed  in  the 
returns  of  survey,  it  might  fairly  be  inferred  that  many  of  the 
cross  lines  were  not  actually  run;  but  in  how  many  instances 
this  omission  obtained,  was  not  ascertained. 

The  Judges  who  tried  the  cause  were  divided  in'  opinion, 
whether  the  plaintiff's  not  running  and  marking  the  intermedi- 
ate lines  of  each  survey  was  not  a  full  bar  to  his  recovery  of 
any  money  whatever  in  this  suit.  I  was  then  of  opinion,  and 
have  seen  no  reason  to  alter  it,  that  it  would  be  more  just  to 
say  that  there  might  be  a  deduction  from  the  surveyor's  bill, 
than  wholly  to  defeat  his  claim  to  remuneration.  The  want  of 
returning  the  surveys  can  be  no  obstacle,  because,  under  the  8th 
section  of  the  act  of  8th  April  1785,  the  deputy  surveyor  has  a 
lien  on  the  survej'^  for  the  payment  of  his  fees. 

The  difficulty  arises  on  the  9th  section  of  that  act.  It  is  plain 
that  the  surveys  declared  to  be  clandestine  and  void  are  those 
which  shall  be  made  before  the  warrants  shall  be  received  by 
the  deputy  surveyor.  I  concur  with  the  plaintiff's  counsel,  who 
asserted  that  the  preceding  parts  of  the  section  are  merely  di- 
rectory. A  different  construction  would  invalidate  many  sur- 
veys of  large  bodies  of  lands,  wherein  the  exterior  lines  have 
been  run  and  marked  for  companies  or  an  individual,  and  the 
division  lines  have  not  been  run  on  the  ground.  I  again  refloat 
that  the  decision  on  this  point  in  Centre  county  has  been  much 
mistaken.  I  go  further,  and  assert  that  surveys  of  a  similar  na- 
ture have  more  than  once  received  our  sanction  upon  the  cir- 
cuit. It  is  well  known  that  the  closing  line  of  a  survey  is  seldom 
or  never  run  on  the  ground,  being  susceptible  of  mathematical 
calculation. 


OF  PENNSYLVANIA.  151 

It  is  not  my  idea  that  a  surveyor  is  entitled  to  his  full  fees      1806. 
unless  he  shall  have  performed  the  duties  enjoined  on  him  by    ^ 
Jkiw.  He  should  faithfully  perform  his  official  duty;  and  though         ,,. 
the  usage  has  been  for  many  deputies  to  run  and  mark  only  the     Inger- 
outside  lines  of  a  large  tract  owned  by  several  persons  in  part-      ^olx. 
nership,  he  is  obliged  to  run  and  mark  the  subdivision  lines, 
when  required  so  to  do.  If  he  should  find  himself  under  a  phy- 
sical impossibilitv  to  do  the  work,  he  should  represent  the  same 
to  the  proprietors;  the  law  compels  no  man  to  do  impossibilities, 
and  such  impossibility  certuinl}'  exists  in  the  execution  of  some 
of  the  present  surveys. 

Hut  here  I  apprehend  the  jury  have  made  what  they  deemed 
a  proper  deduction  from  the  sum  demanded.  The  plaintiff's 
counsel  claimed  interest  on  the  full  services  from  the  time  the 
business  of  the  surveys  was  concluded,  making  115  surveys  at 
3/.  lOs.  each,  (allowing  the  fees  on  the  return  of  each  survey) 
which  amounts  to  1073  dolls.  33  cents.  The  returns  of  survey 
were  ready  in  October  1795,  which  until  the  9th  December 
1805,  the  time  of  trial,  forms  a  period  of  ten  years  and  two 
montlis;  and  the  jury  by  not  allowing  the  plaintiff  that  interest, 
have  in  fact  deducted  from  him  the  sum  of  six  hundred  dollars 
and  upwards.  From  the  evidence  adduced  on  the  trial  he  must 
be  considered  as  the  agent  of  the  defendants,  and  is  now  out  of 
pocket  the  sums  he  has  advanced  for  provisions,  chain  carriers, 
&c.  In  this  view  of  matters  my  sense  of  duty  compels  me  to 
dissent  from  the  opinion  delivered  by  the  majority  of  the  court, 
and  I  trust  what  I  have  said  will  be  imputed  solely  to  that  im- 
pression. 

Smith  J.  gave  no  opinion,  as  he  was  not  present  at  the  argu- 
ment. 

Brackhnridoi-.  J.  concurred  with  the  Chief  Justice  thai 
there  should  be  a  new  trial;  but  said  at  the  same  time  that  h»- 
ould  form  no  id{!a  of  a  f/uanhtm  meruit  for  half  services. 

\ew  trial  granted-. 


152  CASES  IN  THE  SUPREME  COURT 

1806. 


lb 

162 

lOs 

101 

Jw 

(-•1 

Iw 

(!i 

Iw 

(13, 

Iv, 

6*' 

4 

300 

34 

212 

34 

213 

44 

75 

Henry  Sparks,  junior,  who  survived  Isaac  Lloyi* 
SaturJa.;  oirainst  Edwakd  Garrigues  and   Robert  Hay- 

March  22d 

DOCK. 

When  tlic 

condiuonof  'T^HIS  was  an  action  of  debt  brought  to  September  term 

»  bond  is  for  X  j  800,  on  .1  bond  given  by  the  defendants  to  Lloud  and 
the  paymcnl  „        ,      ,         .         ,  ,  t        r    n^  ■       i  i  r 

of  interest     oparks',  bearing  date  the  20th  ot  May  1797,  in  the  penalty  ot 

annually  and  2000  dollars,  conditioned  to  pav  1000  dollars  on  the  20th  of 
ofthepnnci-  •  i     .       r  i   •  »  •  /  n      <-  i 

pal  at  a  dis-  Mai/  1801,  with  lawiul  interest  to  be  paid  annually  irom  the 

tant  day,  the  ^\r^^^,^   The  defendants  pleaded  paument.  with  leave  to  give  the 

interest  mav  .  »^  ,  ,  i  i       r   u 

be  recovered  special  matter  in  evidence;  and  agreeably  to  a  rule  oi  the  court 

before  the  pave  the  following  notice  to  the  plaintiff:  ''  Please  to  take  no- 
principal  is    °     .  ^  "^  •       i         i  •  » 

due,  by  an     "  tice  that  under  the  plea  or  payment  m  the  above  action,  the 

action  of       tt  defendants  mean  to  give  in  evidence  that  the  bond  on  which 

debt  on  the  .  °  . 

bond;  and  if  "  the  action  was  brought  was  given  on  a  purchase  of  a  tract  of 

the  defend-  u  j^^^j-j  containing  2299  acres,  more  or  less,  lying  in  the  patent 
payment  and"  of  Minisini,  Ulster  county,  state  of  New  Tork^  together  with 
attempts  to  u  another  adjoining  tract.  That  the  said  lands  were  mortgaged 
bond  by  giv-"  by  J  esse  Dickerson  to  the  said  Lloyd  and  Sparks,  who  agreed 
'  Hraud  "^^  "  °^  receiving  payment  of  this  and  three  other  bonds  given  at 
want  of  con-"  the  same  time  by  the  defendants  to  them  on  the  same  account, 
&c^bu\*^ails  "  ^°  exonerate  the  said  lands  from  the  said  mortgage.  That  the 
and  makes  "  said  Lloyd  and  Sparks  or  one  of  them  assured  the  defendants 
ludtrment  "  ''^  *^^  time  of  giving  the  said  bonds,  that  the  titles  to  the  said 
shall  be  en-  "  lands  were  good,  but  did  not  shew  them  the  title  deeds  and 
penalty  with  "  P^P^rs,  though  then  in  their  possession.  That  the  defend- 
leave  to  take"  ants  besides  paying  1000  dollars  to  the  said  Dickerson  on  ac- 
^on  in  the  "  ^ount  of  the  said  purchase,  and  1000  dollars  the  amount  of 
first  instance"  one  of  the  said  bonds,  have  expended  1000  dollars  and  more 
rest  due  at  *'  '"^  improvements.  That  it  since  appears  that  Jesse  Dickerson 
ibe  com-  "  had  no  title  to  the  said  land  first  mentioned,  which  was  the 
o/the  action. "  ^"^7  valuable  part  of  the  property  so  purchased;  the  other 
For  the  inte- "  tract  being  of  very  little  value,  except  to  the  owner  of  the  first 
cipafaccru-  "  mentioned  tract."  The  replication  was  non  solvit. 
ingsince.the  At  the  trial  the  defendants  went  fully  into  their  defence  un- 
move  the  der  the  notice;  they  examined  witnesses  and  read  depositions 
court  for  as  to  the  matter  of  title,  and  to  shew  that  by  the  defect  in  Dicker 
when  the  '  ^^^'^'^^  tide  there  was  a  failure  of  consideration.  They  alleged 
defendant     fraud  and  misrepresentation  in  the  plaintiff,  and  urged  them  in 

any  deftnce  avoidance  of  the  bond;  but  did  not  attempt  a  set-off  of  any  kind, 
other  than 

that  which  has  been  tried,  and  arising  subsequent  to  the  suit.  Such  a  plea  of  payment 
is  not  under  the  defalcation  Act,  but  is  allowed  under  the  equity  powers  of  the  court  \x> 
jive  the  defendant  an  eouitab'e  defence. 


QF  PENNSYLVANIA.  15. 

At  the  time  of  actipn  brought,  there  was  duelipon  the  bond  only      1 806. 
a  year's  in.terest,  one  year's  interest  having  been  paid,  and  the    gp^^i^j^c 
payment  indorsed  on  the  bond;  whereas  at  the  time  of  trial  the         7,.. 
entire  principal  was  due;  but  it  was  agreed  that  the  quantum    Garri- 
should  form  no  question  before  the  jurj*.  A  verdict  was  given      f^^'^^s. 
generally  for  the  plaintiff,  with  liberty  to  the  court  to  enter  the 
judgment  for  such  sum  and  in  such  form  as  they  should  think 
proper;  and  this  was  the  subject  of  two  different  arguments. 

It  was  argued  the  first  time  at  December  term  1805,  in  the 
absence  of  Chief  Justice  Shippen,  by  Ross  and  Levy  for  the 
plaintiff,  upon  their  motion  to  enter  j  udgment  for  the  penalty,  and 
to  take  out  execution  for  the  sum  due  at  that  time,  viz.  princi- 
pal and  interest;  and  by  Hare  and  Raxvle  contra,  who  contend- 
ed that  judgment  should  be  entered  for  the  defendants,  as  the 
interest  could  not  be  recovered  in  this  kind  of  action,  or  at  all 
events  merely  for  sixty  dollars,  the  yeai-'s  interest  due  at  the 
commencement  of  the  action. 

For  the  plaintiff.  The  condition  was  to  pay  the  interest  annu- 
ally, and  a  year's  interest  was  due  and  unpaid  when  the  action 
was  brought;  the  penalty  therefore  was  forfeited,  and  judgment 
should  be  for  that  sum.  In  Gladman  v.  Henclunan,  (a)  a  mort- 
gage was  made  for  450/.  payable  at  the  end  of  five  years,  and 
interest  in  the  mean  time  pa)^able  half  yearly;  the  mortgage  was 
held  to  be  forfeited  by  nonpayment  of  the  interest.  The  interest 
is  an  instalment;  and  where  any  instalment  is  due  and  unpaid, 
the  obligee  is  entitled  to  his  judgment  for  the  penalty,  and  to 
execution  as  the  payments  become  due.  Darby  v.  JVilkiiiii  (Ji)^ 
Land  v.  Harris  (r),  Boyuifous  v.  Ribot  (^/),  Masfen  v.  Toiichct 
(e),  is  in  point.  It  was  dei)t  on  bond  conditioned  to  pay  GOO/, 
and  interest,  in  three  years  from  the  date,  by  instalments  of  15/. 
half  yearly,  and  GI5/.  at  the  end  of  the  term,  which  was  not  vet 
arrived.  On  failure  of  payment  of  interest,  obligee  brought  his 
action;  and  it  was  moved  to  stay  proceedings  on  payment  of  the 
interest  due.  IJut  the  court  ordered  judgment  to  be  entered  for 
the  whole,  with  only  a  stay  of  execution  on  payment  of  the  in- 
terest due.  Honul/v.  Hanjorth  {/)-,  Juddx.  Evqus  (^).  If  by 

Ca)  2  Vrrn.  135.  (0  2  IV.  Black.  "06. 

(A)  2  Stra.  957.  (/)  2  jr.  lUact.  843.  S.  F 

(c)  1  Stra.  51.5.  (i')  (5  D  »r  E.  396.  S.  P 
(t/).1  Burr.  13rO 

Vol.  I.  r 


CUES. 


154  CASES  IN  THE  SUi'REME  COURT 

1 806.      •'1  bond,  money  is  payable  by  instalnunts,and  in  such  manner  that 
Spaukb    ^^^  nonpayment  of  a  particular  sum  at  a  day  certain,  makes  the 
r  forlciture   of  the  whole  bond,  and  accordingly  for  the  nonpay- 

Gauri-  ment  of  such  sum  there  is  a  verdict  for  the  plaintiff'^  Jind'ing  it 
to  be  the  deed  of  the  party ^  upon  the  defendani's  bringing  into 
court  all  that  the  master  shall  hold  to  be  due^  and  letting  the 
verdict  stand  as  a  security  for  future  payment,  the  court  will 
by  rule  stay  further  proceedings  on  the  bond.  Webb  v.  Divile.  {a) 
This  is  precisely  our  case,  except  that  by  lapse  of  time  every- 
thing is  due  on  the  bond,  and  nothing  but  the  payment  of  the 
whole  will  stay  execution.  It  is  particularly  proper  that  judg- 
ment should  be  for  the  penalty,  and  execution  for  entire  princi- 
pal and  interest,  because  the  trial  has  been  on  the  merits,  the 
consideration  of  the  bond  discussed,  and  every  objection  that 
can  be  urged  against  it  has  been  urged  and  decided.  The  jury 
have  affirmed  the  deed.  If  judgment  and  execution  are  to  be 
confined  to  the  sixty  dollars,  the  defendants  may  traverse  this 
bond  a  second  time,  and  repeat  the  objections  that  have  already 
been  answered;  or  perhaps  it  may  bar  any  future  suit  on  the 
bond. 

For  the  defendants.  In  the  first  place  the  plaintiff  is  not  en- 
tided  to  judgment  at  all.  The  principal  was  certainly  not  due 
at  the  commencement  of  the  action,  that  is  at  the  time  process 
issued,  and  therefore  cannot  be  noticed  in  this  suit.  Lowry  v. 
Lawrence,  (b)  Then  as  to  the  interest,  it  is  in  the  nature  of  da- 
mages, and  can  be  recovered  as  such  only;  for  in  Seaman  v. 
Dee^  (c)  it  was  resolved  by  the  court  that  "  no  action  of  debt 
"  lies  for  the  interest  of  money,  but  it  is  to  be  recovered  by  as- 
"  sumpsit  in  damages;  and  where  by  deed  the  party  covenants  or 
*'  binds  himself  to  pay  the  principal  with  the  interest,  the  interest 
"  is  not  to  be  included  with  the  principal  in  an  action  of  debt^ 
"  but  shall  be  turned  into  damages."  So  in  Dixon  v.  Parkeset  ah 
where  the  obligee  of  a  bond  received  the  whole  principal  after 
it  was  pav'-ible,  it  was  held  that  he  could  not  recover  the  interest 
m  an  action  on  the  bond,  because  as  the  jury  give  the  interest 
in  the  form  of  damages,  there  must  be  something  to  support 
them.  1  Esp.  Rep.  110.  Now  where  the  debt  is  not  due,  it  can- 

(a)  1  Bnc.  Abr.  669. 

(A)  iV  r.  Term  Rep.  <)9.  Cot^p.  454.  Dous   61 

fc)  1  Vcrar.  198. 


Sparks 


OF  PENNSYLVANIA.  155 

aot  possibly  support  the  damages;  to  this  efTi  ct  it  is  the  same  as      jsOG. 
though  the  debt  were  paid.  The  interest  is  merely  an  accessory 
to  the  principal.  It  is  true  that  in  Herries  v.  jfamieson,  (a)  the 
court  inclined  to  the  opinion  that  debt  would  lie  lor  interest,  be-    Garbi 
cause  indebitatus  assumpsit  would ;  but  still  this  was  intended     gues. 
debt  for  the  interest  only,  and  not  debt  on  the  bond  before  the 
principal  is  due;  for  in  that  case  there  was  one  count  in  debt  for 
the  principal,  and  another  count  in  debt  for  the  interest.  If  it 
were  an  instalment,  the  case  might  be  otherwise.  There  would 
then  be  a  distinct  condition;  and  so  was  the  case  of  Masfen  v. 
Touchet;  the  interest  was  payable  as  an  instalment  by  name, 
and  as  a  part  of  the  debt;  but  the  words  "  to  be  paid  annuallij'^ 
do  not  constitute  such  a  condition,  but  they  leave  it  by  name 
mere  interest. 

But  in  the  second  place,  the  most  that  judgment  can  be  en- 
tered for  is  the  interest  that  was  due  at  the  time  of  action 
brought.  In  this  case  the  pica  is  payment;  not  at  common  law, 
for  there  nothing  but  payment  at  the  day  was  a  defeasance;  nor 
under  the  statute  of  4  Ann.  which  relates  to  entire  payments /^o^f 
dietn;  but  under  the  peculiar  practice  of  Pennsylvania^  and  our 
own  defalcation  act.  It  is  the  settled  practice  of  this  state  that 
on  the  plea  of  payment  the  jury  shall  find  the  precise  sum  due, 
Thompson  v.  Musser;  (b)  and  it  is  their  duty  to  presume  every 
thing  to  have  been  paid,  which  ex  (vguo  et  bano^  in  equity  and 
good  conscience  ought  not  to  be  paid.  HoUingsrvorth  v.  Ogle. 
(c)  It  is  under  this  principle  that  they  weigh  the  whole  transac- 
tion, and  find  precisely  the  amount  due.  It  probably  grew  out  of 
the  defalcation  act,  for  it  Is  clearly  with'n  its  equity.  But  there 
is  here  a  payment  of  one  year's  interest  which  is  indorsed  up- 
on the  bond;  and  the  case  therefore  comes  within  the  express 
words  of  the  defalcation  act  of  1705,  by  which  if  it  appears  to 
the  jur\^  under  the  plea  of  payment  "  that  any  part  of  the  sum 
**  demanded  be  paid,  then  so  much  as  is  found  to  be  paid 
'*  shall  be  defalked,  and  the  plaintiff  shall  have  judgment  for 
the  residue  onli/,  with  costs  of  suit.  1  St.  Laws  65.  Tiu-  objec- 
tion that  the  nuiits  have  been  tried,  is  not  founded  in  fact.  We 
could  give  nothing  in  evidence  that  occurred  subsequent  to  the 
action;  and  yet  wc  certainly  nmst  have  an  op|50ilunity  to  do  it, 
t»ecause  the  principal  was  not  due  until  after  the  action  had  been 

Ca)  5  D  kjf  E  55G       (A>  I  iJatl  4'/J        'c)  1  Dall.  26:'. 


156  CASES  IN  THE  SUPREME  COURT 

180ti.  commenced.  It  must  therefore  he  suhjcct  to  every  objection 
since  that  period,  or  we  arc  concluded  by  an  incomplete  trial. 
We  will  enter  an  agreement  on  record  that  the  judgment  for 


Spahks 


T'. 

Garki-    the  interest  shall  be  no  bar  to  a  future  suit. 


CUES. 


In  reply,  it  was  said,  that  the  case  of  Herries  v.  Jamieson 
had  completely  overruled  that  of  Seaman  v.  Dee  from  1  Veyitris. 
The  opinion  attributed  to  Lord  Hale  could  not  be  law,  or 
there  would  be  no  means  whatever  of  enforcing  the  payment  of 
interest  reserved  and  made  payable  hij  deed  before  the  princi- 
pal; for  the  deed  itself  would  be  a  complete  bar  to  the  assump- 
sit. But  here  the  question  was  not  whether  interest  was  debt  or 
damages,  but  whether  the  nonpayment  of  it  agreeably  to  the 
condition  of  the  bond  was  not  a  forfeiture  which  entitles  us  to 
a  judgment  for  the  penalty;  and  no  answer  on  this  point  has 
been  given  to  our  cases.  The  plea  of  payment  in  this  case,  as  is 
most  evident  from  the  notice  and  the  facts  at  the  trial,  has 
nothing  to  do  with  our  defalcation  act.  This  act  is  expressly 
confined  to  cases  of  persons  dealing'  together^  and  indebted  to 
each  other  upon  bonds,  bills,  bargams,  promises,  accounts,  or 
the  like,  where  the  defendant  does  not  gainsay  the  deed,  upon 
which  he  is  sued.  In  such  a  case  he  may  plead  payment  of  all, 
or  part  of  the  sum  demanded,  and  give  any  bond,  bill,  receipt, 
account,  or  bargain,  in  evidence.  Now  the  evidence  was  used 
exclusively  to  gainsay  the  deed;  and  fraud,  misrepresentation, 
and  failure  of  consideration,  were  severally  objected  to  it,  with- 
out any  attempt  at  set-off.  The  practice  of  the  jury  to  give  the 
precise  sum  due,  grows  out  of,  and  is  confined  to,  cases  under 
this  act.  This  plea  in  truth  has  arisen  from  our  want  of  a  court 
of  Chancery,  and  to  let  the  party  in  to  an  equitable  defence. 
If  he  fails,  the  same  judgment  must  be  rendered  that  is  con- 
stantly given  in  England^  and  in  this  state,  except  in  cases  of 
set-off,  a  judgment  for  the  penalty.  That  the  merits  have  been 
tried  is  most  evident;  for  every  objection,  that  could  go  to  the 
principal,  went  to  the  interest;  and  if  the  bond  was  invalid, 
nothing  was  due,  contrary  to  the  finding  of  the  jury. 

Yeates  J.  We  have  been  called  upon  by  the  counsel  on 
each  side,  to  mould  the  finding  of  the  jury  agreeably  to  the 
rules  of  law,  and  the  substantial  ju-tice  of  the  case.  The  defen- 
dants'^ungcl  have  insisted  that  jhe  verdict  should  be  entered 


OF  PENNSYLVANIA.  157 

for  them,  contending  that  the  suit  in  its  present  structure  i\as  1806. 
been  brought  prematurely.  They  admit  that  a  bond  conditioned  ~T 
to  pay  money  by  instahnents,  may  be  prosecuted  on  one  instal-  ^, 
ment  becoming  due,  though  it  is  otherwise  as  to  a  single  bill;  Garri- 
but  they  urge  that  the  stipulation  of  the  payment  of  the  interest  gues- 
yearly,  is  not  in  its  nature  an  instalment;  and  further,  if  it 
should  even  be  so  considered,  that  a  special  declaration  in  debt 
should  have  been  filed,  demanding  the  interest  eo  nomine.  It 
cannot  be  denied  that  this  obligation  was  intended  to  secure  as 
•well  the  payment  of  the  annual  interest,  from  the  20th  Maij 
1797,  as  the  1000  dollars  on  the  20th  May  1801,  and  it  is  SD 
expressed  in  the  instrument.  If  therefore  the  annual  interest 
could  not  in  correct  language  be  deemed  an  instalment,  it 
■would  fall  under  the  same  principle.  The  objections  to  the 
form  of  the  suit  are  founded  on  the  expressions  imputed  to 
Lord  Kenijon  in  5  T.  R.  553.  The  expi-essionsof  Lord  Kcmjon 
and  of  Justice  Ashhurat^  must  necessarily  be  considered  as 
generally  referrible  to  the  subject  matter  before  them,  which 
was  a  simple  contract.  The  expression  of  Lord  Hale  in  Seaman 
V.  Dee  is  strongly  doubted,  I  might  say  denied.  There  it  was 
held  that  no  action  of  debt  lies  for  the  interest  of  money,  but 
that  it  is  to  be  recovered  by  assumpsit  in  damages;  but  the  other 
two  judges  held  that  debt  would  also  lie  in  such  case;  and  if  it 
was  otherwise,  injustice  would  be  done  where  the  payment  of 
the  interest  was  stipulated  by  deed.  Neither  of  them  however 
assert,  that  this  could  not  be  done  in  a  suit  brought  for  the 
penalty  of  the  bond,  nor  that  it  must  be  effected  by  a  special 
declaration  referring  i<j  the  condition  of  the  obligation.  The 
very  point  now  uader  consideration  was  determined  at  Nisi. 
Prius  at  Lfincastcr^  between  Gra/f  and  IVlutmorc  atid  others^  on 
a  bond  worded  substantially  like  the  present,  wherein  I  was  of 
counsel  with  the  plainlifl.  I  therefore  assume  the  position  that 
interest  may  be  recovered  in  the  present  form  of  action,  and 
proceed  to  consider  to  what  extent  that  recovery  shall  be. 

It  seems  a  settled  principle  that  the  cause  of  action  must  be 
complete  when  the  suit  is  instituted,  and  cannot  be  made  good 
by  subsequent  events.  Where,  however,  on  the  suiu  demanded 
interest  is  fairly  running  on  and  due,  the  jury  in  their  verdict 
should  find  the  same  from  the  commencement  of  the  action 
until  the  time  of  the  trial,  or  if  at  Nisi  Prius  to  the  day  in  bank; 
otherwise  injustice  would  be  effected.   I  do  not  recollect  any 


Gl'ES. 


158  CASKS  IN  THE  SUPREME  COURT 

180f).      other  exception  to  the  general  rule.  No  man  can  be  arrested 
~^  ~~here,  unless  a  good  ground  of  action  exists  when  the  writ  is 
■V.         taken  out;  nor  can  be  compelled  to  defend  such  a  suit.  The 
Garui-    parties  arc  placed  on  the  same  footing,  and  their  relative  rights 
are  graduated  on  the  same  scale ;  a  defendant  cannot  avail  him- 
self of  a  set-off  which  accrued  to  him  after  the  commencement 
of  the  action. 

In  T/iomfiso7i  v.  Musser^  1  Dall.  462.  it  is  asserted  by  coun- 
sel, and  concurred  in  by  the  court,  that  the  constant  practice  in 
all  the  courts  of  this  state,  as  well  before  as  since  the  revolution, 
has  been  to  enter  the  verdict,  on  the  issue  of  non  solvit.,  for  the 
sum  found  to  be  actually  due;  but  it  is  otherwise  on  the  plea 
of  non  est  factum.,  and  most  other  general  pleas ;  the  diversity 
most  probably  grew  out  of  the  defalcation  act.  The  plaintiff's 
counsel  have  objected  that  the  defalcation  act  applies  only  to 
mutual  dehts^  and  that  the  law  in  the  particular  under  conside- 
ration is  confined  to  three  cases:  First,  where  the  defendant 
has  paid  or  satisfied  the  debt  or  sum  demanded:  Secondly,  or 
a  part  thereof:  Thirdly,  or  where  the  plaintiff  has  been  over- 
paid: and  that  the  defence  set  up  here  alleges  a  want  of  consi- 
deration, and  that  nothing  was  ever  due.  It  is  answered  that 
our  act  goes  farther  than  the  British  statutes  of  set-off,  by 
allowing  defendant  to  give  any  bond,  bill,  receipt,  account, 
or  bargain  in  evidence,  and  that  the  practice  of  travelling  into 
the  want  of  consideration,  primarily  arose  from  the  defalcation 
act,  to  prevent  manifest  injustice.  It  is  farther  said,  that  though 
no  payment  is  made  on  such  an  obligation  as  the  present,  it  is 
within  the  equity,  if  not  within  the  express  words  of  the  act  of 
Assembly;  but  that  in  all  events  this  case  is  to  be  governed  by 
the  act,  inasmuch  as  one  year's  interest  had  confessedly  been 
paid  and  was  indorsed  on  the  bond.  In  Musser  v.  Thompson^ 
the  verdict  of  the  jury  was  for  the  entire  debt  and  interest  in 
tobacco,   though   nothing   was   paid   thereon.  The   plaintiff's 
counsel  have  contended  that  the  bond  becomes  forfeited  by  the 
nonpayment  of  the  year's  interest,  which  was  due  previous  to 
the  commencement  of  the  action,  and  that  the  penalty  thereby 
became  the  legal  debt.  They  insist  that  judgment  should  be 
entered  therefor,  the  merits  of  the  bond  having  been  fully  tried, 
in  order  to  move  the  court  to  take  out  execution  for  the  sum 
incurred  since  the  time  of  bringing  the  action,  or  to  take  out  a 
3cire  facias  under  the  8  and  9  W.  3.  which  we  have  extended 


OF  PENNSYLVANIA.  159 

by  our  practice.  To  this  it  is  objected,  that  our  general  pra.c-      1806. 
tice  under  the  plea  of  payment  is  adverse  thereto,  and  that  the    g 
defendants  have  an  unquestionable  right  to  an  untrammeled         -y, 
trial  of  the  whole  merits,  as  any  sum  or  sums  of  money  may    Garri- 
become  due  under  the  obligation.  cues. 

Independent  of  any  practice  which  may  have  obtained  on 
this  head,  mv  great  substantial  ground  of  refusing  my  consent 
to  the  motion,  on  the  part  of  the  plaintiff,  is  that  the  bond  would 
therebv  pass  in  rem  jiidicatam^  and  would  in  fact  amount  to  a 
prejudication  of  matters  not  put  in  issue  in  this  action.  A  judg- 
ment concludes  a  defendant  as  to  all  matters  of  defence  which 
existed  anterior  thereto,  though  as  to  things  which  happen 
since  the  commencement  of  the  suit,  they  may  be  taken  advan- 
tage of  by  pleas  puis  darre'ni  continuance.  I  would  cautiously 
guard  against  everv  legal  difficulty  on  this  score.  If  at  a  future 
day  when  the  trial  of  the  plaintiff's  demand  for  the  principal 
may  come  on,  the  defendants  may  have  it  in  their  power  to 
shew  an  entire  want  of  consideration  for  this  bond,  that  the 
lands  sold  belonged  to  others  who  had  actually  recovered 
them  at  law,  I  think  they  ought  not  to  be  precluded  from  going 
into  defence  upon  such  subsequent  suit  brought  either  in  debt 
or  covenant. 

Moved  by  these  considerations,  my  opinion  is,  that  to  do 
equal  justice  between  the  parties,  the  verdict  should  be  entered 
up  for  sixty  dollars,  the  year's  interest  due  and  payable  at  the 
time  of  the  impetration  of  the  writ,  together  witli  all  the  interest 
due  thereon,  from  the  day  of  payment  up  to  the  time  of  trial. 
I  consider  myself  correct  in  this  particular,  as  it  is  a  fixed  sum 
stipulated  to  be  paid  on  a  precise  day,  and  is  considered  by  the 
court  in  the  nature  of  an  instalment.  For  the  aggregate  thereof, 
I  think  judgment  should  be  entered  and  not  on  the  penalty  of 
the  l)ond  under  the  pica  of  payment  in  this  case. 

Smith  J.  Previous  to  our  consultation  last  evening,  I  had 
seen  and  attentively  considered  the  opinion  delivered,  and  I 
feci  difficulties  about  the  manner  in  wliich  the  verdict  and  judg- 
jnent  ought  to  be  entered  in  this  form  of  action.  On  one  side, 
should  the  verdict  be  entered  for  the  interest  only,  due  at  the 
time  the  action  was  brought,  the  doubt  will  be  whether  a  new 
action  can  be  brought  on  the  same  bond,  for  the  interest  due 
afterwards,  or  for  the  principal;    whether  such  verdict   and 


loO  CASES  IN  THE  SUPREME  COURT 

180G.     judgment  avUI  not  be  a  bar  to  a  future  action.  The  defendants' 
"T;  counsel  have  aproed  to  obviate  this  difficultv  by  making  a 

Si' ARKS  " 

^  Special  entry  on  the  record  that  it  shall  not  be  a  bar.   In  fact 

Gakri-    one  years  interest  only  was  due  at  the  time  the  action  was 
ovFs.      brought;  whether  that  was  paid  or  not,  was  the  only  fact  really 
m  issue  on  trial,  although  the  merits  of  the  whole  were  tried, 
without  due  consideration  I  apprehend. 

It  seems  to  me  that  the  result  would  be  exactly  the  same, 
whether  the  verdict  be  entered  for  the  penalty,  or  for  the  in- 
terest due  at  the  time  the  action  was  brought,  with  interest  from 
the  time  at  which  it  ought  to  have  been  paid,  except  as  to  the 
costs,  if  the  interest  be  under  50/.  For  if  the  defendants  would 
be  let  into  a  defence  in  a  new  action,  if  judgment  be  given  for 
only  the  interest  due,  they  would  be  equally  entitled  to  such 
defence  on  a  scire  facias  for  the  instalments  due  afterwards;  or 
♦.^ven  before  leave  would  be  given  to  take  out  execution  for  such 
instalments,  they  would  on  proper  cause  shewn  be  entitled  to 
have  it  tried  on  an  issue  directed  by  the  court,  whether  any 
defence  had  arisen  which  they  could  not  have  given  in  evidence 
on  the  issue  which  has  been  tried.  That  the  defendants  might 
make  such  defence  is  clear  to  me  on  the  principles  of  the  defal- 
cation act,  and  our  practice  of  giving  fraud,  mistake,  or  want  of 
consideration  in  evidence;  because  suppose  after  the  recovery 
or  payment  of  the  interest,  and  belore  the  principal  became 
due,  or  before  action  could  be  brought  for  it,  the  lands  for 
which  the  bond  was  given  were  bona  fde  recovered  against  the 
obligor,  (he  having  given  due  notice  to  the  obligee  to  defend 
the  title  to  the  land  for  which  the  bond  was  given)  by  due 
course  of  law;  it  would  be  contrary  to  natural  justice,  that  the 
obligor  should  be  compelled  to  pay  such  bond,  and  the  defalca- 
tion act  and  our  practice  in  such  cases  are  founded  on  the  prin- 
ciples of  natural  justice.  Supposing  the  obligor  should  be  let 
jnto  a  defence,  to  the  extent  I  have  stated,  to  each  instalment 
as  it  becomes  due,  it  would  be  no  more  inconvenient  than  if  a 
separate  bond  had  been  taken  for  such  instalment,  in  which 
f'ase  it  is  clear  that  the  defendant  or  obligor  may  make  such  de- 
fence to  each  bond. 

Whether  judgment  be  entered  for  the  penalty,  or  for  the  in- 
terest only,  the  form  of  entering  it  must  be  different  from  any 
in  the  books  of  entries.  I  therefore  suggest  to  the  counsel  on 
each  side  to  draw  up  a  form  in  vrhich  they  think  judgment 


GUES. 


OF  PENNSYLVANIA.  161 

ought  to  be  entered,  to  enable  us  better  to  enter  it  agreeably  to      ISOO. 
our  law  and  practice,  in  a  manner  besc  calculated  to  do  equar~7." 

...  ^  bPARKS 

justice  between  the  parties,  and  to  become  a  rule  in  such  cases 
hereafter.   Difficulties  on  each  side  occur  to  me;  and  if  my    Gakri- 
brothers  should  be  divided  in  opinion,  as  I  believe  they  will,  I 
will  take  time  to  advise. 

Brackenridge  J.  By  the  defalcation  act  "  If  any  two  or 
'••  more  dealing  together  be  indebted  to  each  other  upon  bonds, 
•'  bills,  bargains,  promises,  accounts,  or  the  like,  and  one  of  them 
''•  commences  an  action,  if  the  defendant  cannot  gainsaLf  the 
•'  deed  &c.  it  shall  be  lawful  for  such  defendant  to  plead  pav- 
''  ment  &c.  Sec."  This  act  therefore  does  not  apply  to  cases 
where  he  gainaaijs  the  deed  by  pleading  n07i  est  factum^  or  where 
admitting  the  execution  he  pleads  duress,  or  under  the  plea  of 
payment  gives  fraud,  mistake,  or  want  of  consideration,  in  evi- 
dence, in  avoidance  of  the  deed.  The  penal  sum  is  less  than  nomi- 
nal in  the  case  of  a  set-off  under  this  act;  that  is,  it  is  not  even 
noticed  in  the  judgment  entered,  nor  is  it  necessarv;  for  the 
reducing  of  the  sum  in  demand  by  a  set-off  does  not  affect  the 
costs.  The  act  renders  it  clear  of  this  difficulty. 

In  the  case  before  us,  it  would  certainly  be  most  simple  and 
reasonable  to  sustain  an  action  of  assumpsit  for  the  interest,  as 
for  an  instalment  becoming  due;  but  it  would  affect  the  costs, 
when  the  sum  is  within  the  cognisance  of  an  inferior  jurisdic- 
tion; and  it  would  introduce  another  inconvenience;  the  plea  to 
the  execution,  or  the  pleas  in  avoidance,  might  be  brought  into 
view  and  made  triable  totica  quoties  on  every  instalment  of 
the  obligation,  unless  it  could  be  saved  by  an  averment  as  an 
issue  already  determined.  But  this  would  give  delay,  anil  in- 
crease suits.  Again:  an  action  of  covenant  must  be  on  the  whole 
of  the  obligation,  and  yet  the  judgment  for  the  particular  sum 
recovered.  Would  not  this  be  in  bar  of  another  action  on  the 
bondr  But  can  we  not  reach  the  justice  of  the  case  by  a  judg- 
ment for  the  pcnaltij^  with  leave  to  take  out  execution  for  tht- 
sum  due  at  the  time  of  bringing  the  action,  and  also  for  the  sum 
liecoming  due  up  to  the  time  of  taking  out  execution,  or  what 
may  become  due  subsequent  to  the  taking  out  the  execution  in 
'he  first  instance. 

It  is  not  under  the  def.ilcation  act,  ')ul  under  the  exercise  ol 
(Chancery  powers  that  we  relieve  from  the  penaltv;  and  thouglt 
Vor.  I,  \ 


162  -  CASES  IN  THE  SUPKEME  COURT 

1806.      nominally  wc  pursue  lor  that  sum,  yet  the  sum  really  due  is  the 
"T     ~    .     del)t.   But  he  that  will  have  equity  must  do  equity;  and  on  thi» 
X..  principle  it  was  early  in  practice  to  suffer  the  penalty  of"  an  obli- 

Garki-     gation  to  cover  a  simple  contract  debt.   If"  so,  why  not  cover  a 

^^  ^'^'  sum  that  has  become  due  in  the  intermediate  time,  and  that  de- 
pends on  the  same  writing.  If  any  thing  has  arisen  which  goes  to 
a  sum  becoming  due  since  the  action  brought,  or  plea  pleaded,  or 
judgment  entered,  this  matter  on  motion  may  be  shewn  to  the 
court;  and  if  of  such  a  nature  as  to  require  it,  an  issue  may  be 
directed  to  try  the  fact,  and  in  the  mean  time  the  penalty  sus- 
pended, and  execution  staid  as  to  the  sum  in  conti"oversy.  Or 
let  judgment  be  entered  for  the  penalty,  subject  to  a  defence  to 
any  instalments  becoming  due  since  the  action  brought,  pro- 
vided that  defence  be  on  a  ground  arising  since  bringing  the 
action. 

It  may  be  seen  therefore,  that  I  consider  the  defalcation  act 
as  having  no  application  to  the  case  before  us;  nor  do  I  consider 
our  rule  of  letting  in  a  defence  to  the  consideration  &c.  of  the 
bond  under  the  plea  of  payment,  as  making  any  difference,  save 
as  to  the  way  of  getting  at  the  truth  in  a  court  of  law.  I  substi- 
tute motion  and  leave  to  take  out  execution,  and  the  framing  an 
issue  if  necessary,  in  lieu  of  the  scire  facias.  But  let  the  thing 
take  the  course  of  the  English  practice  if  you  so  choose  it,  and 
let  a  scire  facias  issue  toties  quoties  on  the  instalments;  under 
the  plea  of  payment  nothing  but  payment  could  be  proved; 
for  it  would  not  come  within  the  meaning  of  the  rule  of  plead- 
ing, to  travel  into  the  consideration  of  the  bond,  as  that  issue  is 
alread}'  tried.  I  again  say  that  it  is  under  the  written  rule  of  the 
court,  and  which  rule  is  from  the  Chancery  power  of  the  court, 
that  payment  here  is  pleaded;  it  is  no  set-off,  nor  has  it  any  thing 
to  do  with  that  act. 

There  being  a  difference  of  opinion  in  the  court,  a  second 
argument  was  directed  upon  the  appointment  of  the  present 
Chief  Justice;  and  it  accordingly  took  place  atMarch  term  1806, 
by  Levy  for  the  plaintiff,  and  by  Hare  and  Rawle  for  the  defend- 
ants, upon  the  same  points  which  had  been  already  urged;  except 
that  it  was  now  conceded  that  there  must  be  judgment  of  some 
kind  for  the  plaintiff;  and  this  day  the  judges  delivered  their 
opinions. 


Sparks 


OF  PENNSYLVANIA.  163 

TiLGHMAN  C.  J.  This  is  an  action  of  debt  on  a  bond  in  the  jgOG. 
4^5enalty  of  2000  dolls,  dated  20th  3Iai/  1797,  and  conditioned 
for  payment  of  1000  dolls.  20th  May  1801,  with  lawful  interest 
to  be  paid  annually  from  the  date.  At  the  time  of  the  com-  Gakri- 
mencement  of  the  action,  one  years  interest,  amounting  to  sixty  gves. 
dollars,  was  due  and  unpaid.  The  plaintiff  declared  for  the  pe- 
nalty of  the  bond  in  the  usual  form,  to  which  the  defendants 
pleaded  payment,  with  leave  to  give  the  special  matter  in  evi- 
dence. The  defendants,  agreeably  to  the  practice  and  rule  of  this 
court,  gave  notice  to  the  plaintiff  that  under  the  plea  of  payment 
they  meant  to  give  in  evidence  sundry  matters,  which  I  shall 
not  particularly  mention,  but  which  if  established  were  of  such 
a  nature  as  to  avoid  the  bond.  The  general  replication  was  made 
to  the  plea  of  payment,  and  issue  joined.  The  jury  found  for 
the  plaintiff;  and  by  the  consent  of  the  parties  it  is  now  submit- 
ted to  the  court  in  what  manner  judgment  shall  be  entered,  that 
is  to  say  whether  for  sixty  dollars  the  amount  of  the  interest 
due,  or  for  the  penalty  of  the  bond. 

It  is  a  point  of  considerable  importance;  for  if  the  judgment  is 
entered  only  for  the  sixty  dollars,  the  plaintilfmust  bring  another 
action  for  the  interest  accrued  since  this  action  was  brought, 
and  forthe  principal;and  the  defendant  will  again  put  in  the  same 
plea,  which  has  been  already  tried  and  determined  against  him. 

The  nonpayment  of  interest  annually  was  a  forfeiture  of  the 
bond.  It  should  seem  therefore  that  the  issue  being  found  for 
the  plaintiff,  the  judgment  according  to  the  general  principles  of 
the  law  should  l^e  entered  for  the  penalty  of  the  bond.  It  is  not 
denied  by  the  defendants'  counsel  but  that  this  is  according  to 
the  practice  in  the  cfjurts  of  common  law  in  EiiglunJ.  But  they 
have  made  several  oi)jections  founded  on  the  law  and  practice 
of  Pennsi/hania,  and  particularly  on  an  act  of  Assembly  passed 
in  1705,  commonly  called  the  defalcation  act,  which  directs  that 
in  certain  cases  judgment  shall  be  entered,  not  lor  the  pefia/tt/ 
of  the  bond,  but  for  the  sum  which  by  the  jury  shall  be  found 
to  be  due  thereon.  'J'liis  is  the  only  difficulty  in  the  case;  buf 
it  appears  to  me  to  be  rather  an  apparent  tiian  a  real  difll- 
culty;  for  it  is  founded  on  a  supposition  that  the  plea  of  pay- 
ment with  leave  to  give  evidence  of  an  equitable  defence  in  bar 
of  the  action,  is  derived  from  the  defalcation  art.  But  that  is 
not  the  case.  The  defalcation  act  provides  that  where  there  have 
been  mutunl  dealings  between  plainlin'and  defendant,  if  defend- 
ant cannot  q-ainsai/  the  claim  of  the  plaintiff' -.vhcreon  he  is  iued, 


CUES. 


164  CASKS  IN  Till-:  SUPKKMK  COL'UT 

1806.      l^t-"  niav  pUad  payment  of  all  or  any  part  of  the  debt  or  sum  de- 
SpAKKs     "■'•'^"'^'^■d,  and  give  any  bond,  bill,  receipt,  account,  or  bargain,  in* 

7'  evidence.   If  it  shall  appear  that  he  hw?,  fully  satisfied  the  claim 

Cjauiu-     of  plaintiff,  judginent  shall  be  given  for  him;  if  only /7«r^  has 
been  satisfied,  the  plaintiff  shall  have  judgment  for  the  residue; 
if  the  plaintiff  has  been  overpaid^  the  jury  shall  give  a  verdict 
for  the  defendant,  and  certify  in  how  much  the  plaintiff  is  in- 
debted to  the  defendant,  which  may  be  recovered  by  the  defend- 
ant in  a  .scire  facias  against  the  plaintiff.   Now  the  words  as  well 
as  the  spirit  of  this  act  extend  only  to  cases  of  set-off  where  the 
defendant  acknowledges  the  deed,bargain,  or  account,  on  which 
the  claim  of  the  plaintiff  is  founded,  but  opposes  it  by  payments 
or  by  another  claim  of  his  own.  But  the  case  before  the  court 
is  widely  different;  for  the  defendants  set  up  a  defence,  not  con- 
sisting of  payments  or  set-off,  but  which  goes  to  the  total  destruc- 
tion of  the  plaintiff's  cause  of  action.  On  what  then  is  this  kind 
of  pita  founded?   It  has  arisen  from  the  particular  situation  of 
Fe?insi/lvaniay  in  Avhich  there  is  no  court  of  equity,  and  there- 
fore the  courts  of  common  law  jurisdiction  have  very  properly- 
adopted  a  mode  of  practice  by  which  defendants  are  permitted 
to  avail  themselves  of  an  equitable  defence.  But  it  never  was 
intended  that  an  equitable  defence,  which  goes  in  bar  of  the 
plaintiff's  whole  cause  of  action,  should  be  tried  7yiore  than  once. 
This  would  be  going  beyond  the  relief  granted  by  courts  of  equi- 
ty; and  no  case  has  been  cited  to  shew  that  more  than  one  trial 
has  been  had  under  similar  circumstances  in  this  state.  It  has 
been  shewn  indeed,  that  where  the  special  matter  has  been  given 
in  evidence  under  a  plea  of  payment,  judgment  has  been  enter- 
ed for  the  sum  found  by  the  jury  to  be  due.   But  in  all  the  cases 
cited,  the  whole  dispute  has  been  finally  settled,  and  the  sum 
found  due  on  the  bond  was  the  whole  that  the  plaintiff  could 
ever  be  entitled  to.  The  plaintiff  therefore  would  have  no  ob- 
jection to  entering  judgment  for  that  sum.  But  in  cases  like  the 
present,  if  judgment  is  entered  only  for  the  sum  due  at  the  time 
tht-  suit  was  commenced,  the  plaintiff  will  be  driven  to  a  new 
action  for  every  future  year's  interest,  and  the  parties  involved 
in  a  scene  of  endless  litigation. 

It  has  been  also  objected,  that  by  an  entry  of  judgment  for  the 
penalty,  the  defendants  will  be  debarred  froui  the  benefit  of  a  de- 
fence founded  on  circuinstances  arising  after  the  commence- 
mt)u  fiftl  e  action.  But  that  is  not  the  case.  The  plaintiff  in  the 
first  instance  is  only  allowed  to  take  out  execution  tor  the  sum 


OF  PENNSYLVANIA.  j^,5 

due  when  the  action  was  commenced;  he  must  move  the  court      j  gQg^ 
♦for  future  executions;  and  then  if  it  is  made  to  appear  that  the     ^  ,       ~ 
defendant  has  a  defence,  other  than  that  xvhich  has  been  tried,         ^,. 
and  arising  .subsequent  to  the  suit,  the  court  have  it  in  their    Garmi- 
power  to  see  that  justice  shall  be  done.  ciEs. 

It  is  extremely  convenient,  and  prevents  a  multiplicity  of  suits, 
to  enter  judgment  for  the  penalty  of  bonds,  and  to  give  permis- 
sion to  the  plaintiff' to  take  out  execution  for  the  different  sums 
as  thev  become  due,  according  to  the  condition.  I  can  see  no  ob- 
iect  in  entering  judgment  only  for  the  interest  due  at  the  time 
of  the  action  brought,  but  to  let  the  defendants  into  a  second 
yial  of  what  has  been  already  determined:  an  object  subversire 
of  a  very  valuable  principle  of  law,  and  tending  to  the  increase 
of  expense  and  litigation.  Expedit  reijmblicce  ut  sitjinis  litium. 
I  am  of  opinion  that  judgment  be  entered  for  the  penalty  of 
the  bond,  with  liberty  for  the  plaintiff"  in  the  first  instance  to 
take  out  execution  for  sixty  dollars. 

Yeates  J.  said  he  was  under  the  necessity  of  adhering  to  the 
opinion  which  he  had  before  delivered;  that  is,  that  judgment 
should  be  entered  for  the  sixty  dollars,  with  interest  thereupon 
from  the  time  of  issuing  the  writ,  but  without  costs,  as  the  sun\ 
did  not  amount  to  fifty  pounds;  and  that  he  could  not  think  that 
the  admission  of  the  execution  of  an  obligation  by  the  obligor, 
and  shewing  at  the  trial  that  it  would  be  the  height  of  injustice 
to  exact  the  payment  thereof  under  all  the  circumstances  of  the 
case,  could  be  denominated  j^-ainsaijin^  the  deed.  It  was  no 
more  in  his  idea,  than  if  he  could  prove  that  the  full  contents  of 
the  bond  had  been  discharged  in  current  money. 

Smith  J.  and  Brackknridgi;  J.  agreed  in  opinion  with  the 
Chief  Justice,  and  said  that  the  defendants  ought  to  have  liber- 
ty to  make  defence  on  future  instalments,  provided  such  de- 
fence arose  since  the  commencement  of  this  action,  and  was  not 
the  same  that  had  been  tried. 

Judgment  for  the  Penaltv,  with  leave  to 
take  out  execution  for  sixty  dollars. 

At  a  subsequent  day  the  question  w;i.s  argued  before  the 
€f)urt,  whelhc  r  the  plaintiff"  was  entitled  to  charge  interest  on 
till-  annual  interest  of  the  bond,  which  was  decided  in  the  nc- 
j^tivc. 


G(")  CASKS  IN  THE  SUPREME  CUUR'f  ,   ib  lee 

4y  576 
lb  233 

1806.  i«i!'» 

____  ____.  6w431 

„.  5w569 

Pltts:!ur^',  22     360 


•S"a"" '/">•.  Lessee  of  Hazard  as[aiust  Lowrv- 

Scptember  " 

THIS  was  an  ejectmtnt  for  land  lying  north  and  west ol  the 
.     ,      .  ,,  rivt-rs  C/i/o  and  v4//fp//<v?vantl  ^'i'^i(*7''^'"^<5  creek.  The  war- 

Ill  tlie  ninlli  . 

section  of  rant  to  the  lessor  of  the  plaintiffbore  date  the  13thof  ^/;n7l792, 

'id  A^'-l  ^"'^'  called  tor  400  acres  "  adjoining  land  this  day  granted  to  Walter 

1792,  which  "  Stervart.^^  At  the  time  the  warrant  was  taken  out,  and  until 

^eulcmeni  ^^*-'  ^i"^^*}'  ^f  General  VVayne^  which  was  made  at  Meadville  on 

in  r  iisc  of  the  3d  of  August  1 795,  and  ratified  on  23d  of  December  t'ollow- 

pre\ention  .^  there  was  an  Indian  war  on  the  frontiers  of  Pennsiilvania; 
Dj  1.10  eiic-         o'  •' 

m},  also  ex-  and  the  frequent  irruptions  of  the  enemy  into  the  quarter  of  the. 
Tcv^  Two"  country  to  which  the  warrant  applied,  have  been  repeatedly 
yeais  after  recognised  hv  the  courts  of  this  state  as  excusing  during  that 
ti(in  bv^Gene- P^""'^^  the  settlement  required  by  the  act  of  3cl  April  1792;  in- 
ral  Wayne's  deed  until  the  spring  of  1 796  there  was  hardly  an  instance  of 
reasonable  ^"Y  person,  except  a  few  intrepid  and  perhaps  rash  adventurers, 
time  fur  ^y^o  attempted  to  make  a  footing  in  that  country.  On  the  17th 
settlement  J^me  1794,  more  than  two  years  after  the  date  of  the  warrant, 
which  has     ^  survey  was  made  upon  it  by  Recse^  the  deputy  surveyor  of 

hem  preven-  ....  ,.  ,'...,  ,,    "i-    • 

ted  by  the  the  district,  according  to  thu  description  m  the  warrant ''  adjom- 
enemy.  "  ing  Walter  Stexvart-^^  but  no  entry  was  made  at  that  time  by 
the  lessor  of  the  plaintiff,  or  by  any  one  under  him,  with  a  view 
to  settlement.  The  defendant  entered  on  the  land  in  July  1795; 
and  the  plaintiff  brought  his  ejectment  to  Sep'emberttrm  1797, 
more  than  a  year  and  a  day  after  Gen.  Wai/7ie^s  treaty,  but  less 
than  two  yeais.  The  demise  was  laid  as  of  the  1st  October  1796. 
The  whole  case  turned  upon  the  construction  of  the  9th  sec- 
tion of  the  act  of  the  3d  April  1792,  which  is  in  the  following 
terms.  "  No  warrant  or  survey  to  be  issued  or  made  inpursu- 
"  ance  of  this  act  for  lands  lying  north  and  west  of  the  rivers  0/»"^ 
"  and  Allegheny  and  Conewungo  creek,  shall  vest  any  title  in  or 
"  to  the  lands  therein  mentioned,  unless  the  grantee  has  prior 
"  to  the  date  of  such  warrant  made  or  caused  to  he  made,  or 
"  shall  -within  the  space  of  two  yearn  next  after  the  date  of  the 
"  .same  make  or  cause  to  be  made  an  actual  settlement  thereon, 
"  by  clearing,  fencing  and  cultivating  at  least  two  acres  for 
*'  every  hundred  acres  contained  in  one  survey,  erecting  thereon 
"  a  messuage  for  ih:.-  habitation  of  man,  ;md  n  siding  or  causing 
"  a  family  to  reside  thereon  for  the  space  of  five  years  next  fol- 


OF  PENNSYLVANIA.  16"; 

*•  lowing  his  first  settling  the  same,  if  he  or  she  shall  so  long      1806. 
'•'•  live;  and  in  default  of  such  actual  settlement  and  residence,  it "  Lessee 
"  shall  and  may  be  lawful  to  and  for  this  Commonwealth  to         of 
"  issue  new  warrants  to  ather  actual  settlers  for  the  said  lands    Hazard 
*•'  or  any  part  thereof,  reciting  the  original  warrants,  and  that    .     ^'' 
*'  actual  settlements  and  residence  have  not  been  made  in  pur- 
"  suance  thereof;  and  so  as  often  as  defaults  shall  be  made,  for 
"  the  time  and  in  the  manner  aforesaid;  which  new  grants  shall 
"  be  under  and  subject  to  all  and  every  the  regulations  contain- 
"  ed  in  this  act.   Provided^  that  if  any  such  actual  settler,  or  any 
"  grantee  in  any  such  original  or  succeeding  warrant,  shall  by 
"  lorce  of  arms  of  the  enemies  of  the  United  States  be  prevented 
"  from  making  such  actual  settlement,  or  be  driven  therefrom, 
*'  and  shall  persist  in  his  endeavours  to  make  such  actual  settle- 
"  ment  as  aforesaid,  then  in  either  case,  he  and  his  heirs  shall 
*•'  be  entitled  to  have  and  to  hold  the  said  lands,  in  the  same 
"  manner  as   if  the  actual    settlement  had    been    made   and 
-*'  continued." 

At  the  trial  of  the  cause  in  November  1802  in  the  Circuit 
Court  of  Allegheny  county,  a  verdict  was  taken  for  the  plaintiff, 
suljject  to  the  opinion  of  the  court  upon  three  points  reserved; 
and  which  were  now  the  ground  of  appeal,  as  the  decision  of  the 
court  below  was  in  favour  of  the  plaintiff  upon  all  of  them.  I. 
Whether,  as  no  survey  was  made  upon  the  plaintiff's  warrant 
within  two  years  next  after  the  date,  any  survey  thereon  made 
afterwards  could  vest  a  title  in  the  warrantee.  2.  Whether  any 
title  vests  in  a  warrantee  under  the  act  of  3d  April  1792,  un- 
less he  has  made  an  actual  settlement  before  the  date  of  the 
warrant,  or  within  two  years  next  afterwards.  3.  Whether, 
supposing  the  plaintiff  to  have  been  prevented  during  the  two 
years  after  the  date  of  his  warrant  from  makingan  r.clual  settle-, 
ment,  he  had  proceeded  to  make  it  within  a  reasonable  time 
after  the  prevention  ceased. 

A.  W.  Foster  for  the  defendant  contended  on  ihej/rst  point, 
that  as  the  warrant  in  this  case  was  not  of  a  nature  to  ascertain 
the  lanfl  without  a  survey,  and  as  the  ninth  section  of  the  act  of 
3d  April  1  792  required,  in  order  to  vest  a  title,  that  within  two 
years  from  the  date  of  the  warrant  certain  arts  should  In-  per- 
iormcd  upon  or  with  reference  to  a  specific  ascertained  tract 
of  land,  it  followed  that  there  never  had  been  even  an  inccp- 


168  CASKS  IX  THK  SUPHEMi:  COURT 

1806.      tioi^   of  title    in    the    pkiintifl".    The  w;irrantee    did   not  know 

r^""""  within  tlic  two  years  where  his  land  was;  he  of  course  had   it 

of        not  in  his  power  to  enter  or  to  take  any  step  with  refercrice  to 

Hazaud    it.  In  fact  he  did  not  lay  claim  to  any  land  until  the  time  had 

r     '  '         expired.  A  special  warrant,  which  describes  the  land,  attaches 

LOWUY.       .',.'..  ,         •    ,        ,  ,  , 

Irom  the  tune  it  is  entered  with  the  deputy  surveyor;  but  a 
general  warrant  like  this,  if  it  is  of  any  avail  under  the  act  of 
1792  which  in  its  ///i/v/ section  demands  a  particular  description 
of  the  lands  in  every  a]}plication,  attaches  only  from  the  time 
'  of  survey,  unless  a  special  entry  descriptive  of  the  land  is  made 
at  the  time  of  delivery  to  the  surveyor.  Whatever  may  have 
been  the  situation  of  the  country,  the  plaintiff  must  make  out  his 
title  according  to  the  ;///i^/i  section.  The  provho  at  most  dis- 
penses with  actual  settlement  only  in  the  event  oi  -a prevent/on 
by  the  enemies  of  the  United  States;  but  the  plaintiff  never  had 
a  survey  which  fixed  a  particular  body  of  land  whereon  he  had 
a  right  to  enter  and  settle;  and  it  is  therefore  absurd  to  say  that 
he  W2i^  prevented  hyxht.  enemy  from  settling,  or  that  there  ever 
was  a  tract  of  land  which  he  could  persist  in  his  endeavours  to 
settle.  A  survey  is  a  condition  precedent  to  the  operation  of 
the  proviso;  for  until  that  is  made,  there  is  no  object  for  settle- 
ment, prevention,  and  persistence. 

The  defendant  entered  then,  after  the  plaintiff  forfeited  his 
right.  He  became  an  actual  settler,  as  he  might  well  be  without 
a  vacating  warrant;  for  the  9th  section  is  explicit,  that  in  case 
of  forfeiture  new  warrants  shall  issue  to  other  actual  settlers^ 
which  implies  a  settlement  before  the  new  warrant  is  issued;  and 
having  entered  upon  a  right  adverse  to  the  plaintiff,  his  settle- 
ment cannot  enure  to  the  plaintiff's  use. 

'I'he  .st'conr/ point  was  not  pressed. 

On  the  third  point  it  was  contended  that  the  decision  of  the 
Supreme  Court  of  the  United  States  in  Heidekoper''s  Lessee 
V.  Douglass  (a)  was  not  binding  upon  the  courts  of  this  state,  as 
it  was  not  pronounced  in  a  cause  exclusivelif  of  Federal  juris- 
diction; the  point  was  therefore  to  be  settled  bj-  the  decisions  in 
Pennsylvania^  which  established  the  necessity  of  an  actual  set- 
tlement after  the  prevention  had  ceased.  The  question  in  the 
present  instance  was  as  to  the  time.  All  apprehension' of  danger 
ceas'.d  at  least  as  early  as  the  ratification  of  Cieneral  Wat/ne^s 
treaty  in  December  1795,  and  more  than  a  vearand  a  half  elap- 

(.7)  4  Dait.  o9':. 


OF  PENNSYLVANIA.  169 

sed  before  the  plaintiff  made  an  attempt  to  proceed  under  his      J  806. 
survey.  The  common  law  has  limited  a  year  and  a  day  to  be  a     Lessee^ 
legal  and  convenient  time  for  a  great  variety  of  purposes,  espe-         of 
ciallv  in  the  case  of  continual  claim,  to  which  this  renewal  of  Hazard 
settlement  is  in  many  respects  analogous.  Co.  Lift.  254.  b.  sec.    ,    ^'' 
422,— .3.  Rmin.  on  Eject.  143.;  and  as  a  general  rule  to  which 
this  and  all  other  cases  must  bend,  it  would  manifestly  interfere 
with  the  main  design  of  the  legislature  to  settle  this  frontier 
country,  if  a  longer  time  were  allowed.  The  actual  settler  is  en- 
titled to  a  credit  for  every  day  he  has  resided  on  the  tract,         , 
against  the  five  years'  residence  required  by  the  law;  and  as  in 
many  cases  an  actual  settlement  was  commenced  before  preven- 
tion, he  should  be  allowed  as  a  general  rule  only  a  medium  of 
the  whole  time  for  completing  his  actual  settlement  after  the 
prevention  was  at  an  eiad. 

Ross  for  the  plaintiff.  The  first  point  states  nothing  in  rela- 
tion to  the  entry  of  the  warrant  with  the  deputy  surveyor;  but 
submits  the  naked  question,  whether  the  survey,  not  having 
been  made  within  two  years,  vested  any  title  in  the  plaintiff;  or  in 
other  words,  inasmuch  -dslhit  proviso  dispenses  completely  with 
settlement  where  it  is  prevented  by  the  enemy,  whether  it  does 
not  also  for  the  same  cause  dispense  with  the  survey.  The  ques- 
tion answers  itself.  The  warrantee  is  excused  from  entering  to 
settle,  because  it  would  be  monstrous  to  insist  upon  it  at  the  haz- 
ard of  his  life;  and  can  it  be  argued  that  although  the  danger 
was  precisely  the  same,  there  should  nevertheless  be  an  entry 
to  survey?  Besides,  the  plaintiff  could  not  compel  a  survey.  It 
could  be  made  only  by  the  public  officer;  and  both  the  courts  of 
this  state  and  of  the  union  have  held  that  lie  is  excusable  in  re- 
fusing to  survey  Jlai^rante  hello.  The  argument  therefore  pro- 
ceeds upon  a  double  injustice  to  the  warrantee,  by  making  him 
suffer  for  not  causing  that  to  be  done  whicli  the  spirit  of  the 
proviso  excuses,  and  then  by  imputing  to  him  the  omission  of 
a  public  officer  whom  the  law  in  this  very  particular  justifies. 
Th{'  endeavour  of  the  plaintiff  is,  however,  very  obvious  from 
the  survey  having  been  made  in  June  1794,  during  the  period 
uf  hostility;  and  as  the  defendant  entered  in  iryr),  the  kind  of 
warrant  taken  by  the  plaintiff  is  legalized  from  tlie  time  of  sur- 
vey, by  the  act  of  22fl  April  1  794.   3  St.  Laws  581. 

Vol.  I.  Y 


170  CASES  IN  THE  SUPREME  COURT 

180G.  T'^^  second  point  has  been  settled  by  this  court  at  Sunburij. 

It  cannot  indeed  be  seriously  urged  that  an  actual  settlement 

of         niu-.^t  lie  made  within  the  two  years,  without  rejecting  almost 

Hazaud   the  onlv  plain  meaning  which  the  proviso  affords.  The  acts  of 

'''•         Assembly  for  raising  troops,  prove  incontestibly  a  prevention 

by  the  enemy;  and  nothing  more  is  necessary^  to  postpone  the 

effect  of  the  whole  enacting  clause,  even  from  the  moment  the 

warrant  issues. 

On  the  third  point  there  are  two  positions  for  the  plaintifl', 
one  as  it  respects  the  defendant,  the  other  the  Commonwealth. 
As  it  respects  the  defendant,he  was  a  wrongdoer;  hecntered  be- 
fore the  treaty,  while  most  clearly  the  plaintiff's  right  was  in 
force;  and  he  shall  never  be  permitted  to  object  to  our  claim,  a 
defect  of  which,  if  it  exists,  he  himself  was  the  cause.  As  it  re- 
spects the  commonwealth,  even  the  common  law  rule  is  suffi- 
cient; for  our  demise  is  laid  on  the  1st  October  179&;  not  a  year 
after  the  ratification  of  the  treaty,  which  is  the  point  of  time  at 
which  a  settlement  might  have  been  commenced  with  safety. 
Merri'>*s  Lessee  v.  Neighman.  (a)  But  the  rule  which  has  been 
adopted  at  Sunbury,  and  which  is  the  only  rational  rule  that  can 
be  adopted  upon  the  subject  is  this,  that  as  the  9th  section  al- 
lows two  years  for  clearing,  fencing,  building  &c.  and  as  the 
enemy  prevented  all  settlement  until  the  ratification  of  the 
treaty,  two  years  ufter  that  date  is  a  reasonable  time  for  per- 
forming the  same  duty. 

TiLGHMAN,  C.  J.  delivered  the  opinion  of  the  court.  This 
cause  comes  before  the  Court  upon  an  appeal  from  the  Circuit 
Court  of  Allegheny  county.  The  ejectment  was  brought  to  Sep- 
tember 1797,  and  tried  November  1803,  when  a  verdict  was 
taken  for  the  plaintiff,  by  agreement,  subject  to  the  opinion  of 
the  Court  upon  the  points  to  be  reserved.  These  points  arc  spe- 
cified i'l  the  record,  and  are  now  the  subject  of  our  considv;ra- 
tion.  The  counsel  for  the  defendant  has  argued  the  cause  on 
very  extensive  grounds,  and  raised  manv  points  not  necessary 
to  be  determined  in  deciding  the  questions  before  us.  The 
weight  of  business  resting  upon  this  court,  will  make  us  cau- 
tious how  we  express  our  opinions  on  matters  foreign  from  the 


(fl)  i  Dall.  209 


OF  PENNSYLVANIA.  171 

tase  before  us.  I  shall  therefore  confine  myself  to  the  reserved  1806. 
points  stated  on  the  record,  without  intimating  any  opinion  on  j  gcsee 
any  otht;r  question.  of 

The  first  and  second  points  may  be  considered  under  one    Hazard 
yiew.  Thev,  as  well  as  the  third  point,  arise  out  of  the  act  of  3d    _    ^' 
April  1792,  and  prmcipally  out  ot  the  9th  section  otthat  act. 

Although  this  section  is  expressed  with  such  obscurity  as  to 
have  occasioned  great  diversity  of  opinion  among  men  of  the 
first  abilities,  yet  there  are  some  points  concerning  which  there 
can  belittle  doubt.  One  of  these  points  is,  that  if  the  setdement 
required  by  law  is  prevented  by  force  of  arms  of  the  enemies  of 
the  United  States,  the  interest  of  the  grantee  does  not  revert  to 
the  commonwealth,  although  the  settlement  is  not  made  within 
two  years  from  the  date  of  the  warrant.  Now  in  the  case  before 
us,  the  warrant  bears  date  the  13th  April  1792,  and  it  is  noto- 
rious, and  not  denied  by  the  defendant,  that  for  more  than  two 
years  from  that  time  there  was  open  war  with  the  Indians, 
which  rendered  it  dangerous  to  attempt  a  settlement  of  the  land 
in  dispute.  It  may  be  safely  affirmed,  from  the  public  acts  of  the 
commonwealth  in  granting  money  and  raising  troops  for  the 
protection  of  the  countrv,  that  this  state  of  danger  existed  until 
the  pacification  by  Gtrneral  Wayne'' s  treatv  with  the  Indians.  If 
the  danger  arising  from  this  war  excused  the  warrantee  from 
making  a  settlement,  so  did  it  likewise  excuse  the  deputy  sur  • 
vcyor  from  surveying  the  land.  The  counsel  for  the  defendant 
contends,  that  inasmuch  as  the  warrant  does  not  describe  the 
land  except  as  "  adjoining  a  tract  granted  to  Walter  Stewart^^ 
which  had  not  been  surveyed,  the  warrantee  could  not  know 
where  it  lay  until  it  was  surveyed,  and  of  consequence  he  could 
not  be  prevented  from  settling  what  he  had  no  right  to  enter  on. 
Hut  this  argument  has  more  of  rclimmcnt  than  of  solidity. 
When  the  warrantee  paid  his  money  and  took  out  his  warrant, 
his  title  commenced;  he  ol)tained  a  right  to  reduce  the  laud  to 
a  certainty  by  survey,  and  he  shall  not  be  deprived  of  that  right 
by  the  event  of  war.  There  is  nothing  in  the  act  which  autho- 
rizes such  a  position.  On  the  contrary,  the  proviso  in  the  9di 
section  which  excuses  the  settlement,  does  virtually  excuse  the 
survey. 

The  third  point  for  our  decision  supposes  that  the  warrantee 

was  prevrnt.d  by  the  enemv  from  makiriK  a  sctth-m- n:  f)r  two 

ears  from  thr  date  of  the  warrant;  but  the  defendant  contends 


172  PASES  IN  THE  SUPREME  COURT 

1806.      that  a  settlement  was  not  made  within  a  reasonable  time  alter 
Lessee     ^^^  prevention  ceased.  It  was  decided  by  my  three  brethren  at 
of         the  special  Court  at  Sunbunj^  (a)  when  I  had  not  the  honom- 
tlAZAHD    Qf  jj  gpjjj  Qj^  ^Y[\s  bench,  that  a  reasonable  time  for  such  set- 
LowRT     element  should  be  allowed;  and  to  that  opinion  I  subscribe. 
The  question  then  is,  what  is  that  reasonable  time?  The  law  has 
not  fixed  it.  But  as  two  years  are  allowed  for  building,  clearing, 
and  fencing,  in  case  the  country  had  been  in  a  state  of  peace,  it 
seetns  most  consonant  to  the  spirit  of  the  law  that  where  war 
existed  from  the  date  of  the  warrant  for  two  succeeding  years, 
not  less  than  two  years  should  be  allowed  from  the  pacification 
by  the  treaty  by  which  the  war  was  concluded.  I  understand 
this  to  have  been  the  opinion  of  the  Judges  of  this  court,  and  I 
see  nothing  which  should  induce  us  to  depart  from  it.  The  de- 
fendant then,  having  entered  during  the  time  that  the  lessor  of 
the  plaintiff  had  a  right  to  hold  the  land  for  the  purpose  of 
making  a  settlement,  was  a  wrong  doer,  and  subject  to  be  re- 
moved either  by  an  entry  or  by  ejectment.  It  follows  that  the 
plaintifTwas  entitled  to  judgment  in  the  Circuit  Court,  and  that 

judgment  must  now  be  affirmed. 

Judgment  affirmed. 

(a)  4  null.  237.  ^   r\ 


I  10s ,225 
'  ,"'^306/ 

Ft tuburg,  Griffith  ai>'a bist  Ogle  and  K i m m e l l . .'         / 

Saturday,  o  ' 

September 

J?^^'  1-  ..  nnHIS  was  an  appeal  from  the  Circuit  Court  of  Somerset 
It  a  verdict        I  ^  * 

be  found  for     -■-     county. 

( tio'  ^s        ^*  ^^^^  ^"  action  on  the  case  in  nature  of  a  writ  of  conspiracy. 
inadc  in  ar-  The  first  count  in  the  declaration  charged  that  the  plaintiff  being 

ment"durim'-^"*^^^°'^'''^^^"  j"^^'^'^  of  the  Common  Pleas  o'i  Somerset  cowDty^th^ 
ihc  penden-  defendants  conspi»"ed  falsely  to  charge  him  with  the  offence  of 
ihe^plaintifl'  t^^i"S  illegal  fees,  and  to  cause  him  to  be  removed  from  office; 
dics,;iidj;-  and  in  pursuance  of  their  malicious  conspiracy  didfolselij  and 
etuL  eda'sof  maliciously  accuse  and  charge  him  with  taking  illegal  fees.  The 

a  'e.m  after 
the  \erdict 

when  he  was  alivo.  It  seeins  that  in  an  action  on  the  case  in  the  nature  of  a  writ  of  con- 
spiracy, it  is  iiot  necessary  to  declare  that  the  conspii-acy  was  witbuiit  probable  cause. 
"  Fr.lisel-;  ar.d  maiicicuti}'"  is  ejiougl).  At  all  e>cnts  it  is  gnou  after  \erdicl.  'L'hf  law  iin- 
plics  Ja  "Sgc-  fron.  a  conspiracy  i->  accuse  a  pcrsau  of  an  offense  for  wliich  he  is  liable  to 
indictment  and  removal  from  office. 


OF  PENNSYLVANIA.  173 

second  count  charged  that  the  defendants  cons^ivtd  false-ly  and      1 806. 
maliciously  to  accuse  the  plaintiff  before  the  house  of  representa-  q^ij.j.ixh 
tives,  of  taking  and  extorting  illegal  fees  from  a  certain  Chris-  v. 

tian  Hershberrrei\  and  that  in  pursuance  and  execution  of  their  Ogle. 
said  conspiracy,  under  false  pretext  and  colour  of  legal  process, 
they  caused  and  procured  Hcrshberger  to  appear  before  a  justice 
of  the  peace,  and  prepared  a  certain  writing  in  form  of  an  affidavit, 
wherein  it  was  falsely  stated  that  the  plaintiff  had  taken  an  ille- 
gal fee;  and  did  endeavour  to  prevail  on  the  said  Hershberger 
to  make  his  affidavit  to  the  facts  stated  in  the  said  writing,  when 
they  knew  the  contents  of  the  writing  to  be  absolutely  false. 
The   general  issue  was  joined,  and  upon  the  trial  in  October 

1802,  the  jury  found  for  the  plaintiff  upon  both  counts,  and 
assessed  damages  at  GOO  dolls,  generally. 

Reasons  were  offered  to  the  Circuit  Court  for  a  new  trial,  and 
in  arrest  of  judgment,  which  they  overruled  in  October  1804; 
and  as  the  plaintiff  died  after  the  verdict,  to  wit,  in  March 

1803,  they  ordered  judgment  to  be  entered  as  of  a  term  when 
he  was  living.  From  this  judgment  the  defendants  appealed} 
and  the  case  was  now  argued  upon  most  of  the  points  decided 
by  the  Circuit  Court,  by  IVilkins  and  Addison  for  the  defend- 
ants, and  by  Riddle  and  Woods  for  the  plaintiff. 

TiLGHMAN  C.  J.  delivered  the  opinion  of  the  court,  aftei 
stating  the  case. 

The  first  question  is  whether  the  Circuit  Court  did  right  in 
entering  judgment  as  of  a  term  in  which  the  plaintiff  was  living. 
Although  this  point  has  not  been  absolutely  abandoned  by  the 
defendants'  counsel,  yet  with  great  propriety  it  has  not  been 
urged  as  if  they  supposed  it  was  tenable.  Direct  authorities 
have  been  cited  by  the  plaintiff's  counsel,  in  support  of  this 
practice,  (ti)  It  tends  very  much  to  the  attainment  of  justice, 
and  we  have  no  doubt  but  it  is  perfectly  regular. 

Of  the  remaining  points  offered  in  support  of  a  new  trial,  and 
in  arrest  of  judgment,  some  have  been  al)andoned  by  the  de- 
fendants' counsel,  and  others  insisted  on.  I  shall  confine  mysell 
to  the  latter.  They  may  be  classed  under  the  following  heads. 

(n)  Cumber  v.  Wane,  1  Sra.  426.    Tuoier  v.  Duke  of  lifoufftt,  I  linn.  14S. 
Trclavtnyy.  Dithop  rf  Wincheittr,  I  liurr.  219. 


174  CASES  IN  THE  vSUPREME  COURT 

180G.  !•  That  the  declaration  does  not  state  that  the  defendants 

OjijPP,^  conspired  against  the  p\a.int\ff  rvit/iout  provable  cause. 

V.  2.  That  the  declaration  does  not  allege  that  the  plaintiff  was 

OoLE.     put  to  any  inconvenience,  or  suffered  anv  loss  or  damage. 

3.  That  the  judge  who  tried  the  cause  erred  in  charging  the 
jury  that  the  defendants  had  not  proved  probable  cause. 

1.  Tlie  defendants*  counsel  have  bottomed  their  arguments  on 
the  first  point,  on  this  position,  that  the  analogy  between  actions 
for  a  malicious  prosecution,  and  the  present  action  is  so  great, 
as  to  warrant  the  conclusion  that  the  declarations  in  both  actions 
should  be  alike  in  alleging  the  want  of  probable  cause.  There 
is  however  a  considerable  difference  between  these  actions.  The 
action  for  malicious  prosecution  being  founded  on  a  malicious 
proceeding  bv  the  defendant  in  a  court  of  justice,  there  is  more 
reason  for  alleging  in  that  action  than  in  this,  that  there  was  no 
probable  cause  for  the  prosecution;  because  when  legal  process 
is  issued,  the  presumption  prima  facie  must  be,  that  those  pro- 
ceedings were  proper.  This  is  founded  on  that  respect  which 
is  due  to  the  process  of  courts  of  justice.  But  even  in  actions  for 
malicious  prosecutions,  no  good  authorities  have  been  cited  to 
shew  that  a  declaration  stating  the  prosecution  to  be  false  and 
malicious,  is  bad  after  verdict;  and  without  expressing  our 
opinion  on  a  case  not  before  us,  we  will  only  say  that  We  are 
far  from  being  convinced  that  in  such  case  judgment  should  be 
arrested. 

In  a  writ  of  conspiracy  strictly  speaking,  it  is  sufficient  to 
charge  the  defendants  with  a  conspiracy  falsely  and  maliciously 
to  accuse  the  plaintiff  of  a  crime,  without  saying  any  thing  about 
probable  cause.  This  action  on  the  case  in  the  nature  of  a  writ 
of  conspiracy,  has  been  invented  for  the  ease  of  plaintiffs,  being 
attended  with  much  less  form  than  the  old  writ  of  conspiracy. 
When  I  say  that  two  men  conspired  falsely  and  maliciously  to 
charge  me  with  an  offence,  I  go  far  towards  saying  that  they  had 
no  probable  cause  for  their  conduct;  for  if  they  had,  they  could 
not  properly  be  said  to  have  acted  maliciously.  Besides,  if  proba- 
ble cause  had  been  shewn,  the  defendants  ought  not  to  have 
been  found  g'liltj';  and  we  cannot  do  otherwise  than  presume 
that  pro!)able  cause  was  not  shewn.  Nay  it  appears  on  the  record 
th"it  the  defendants  had  the  full  advantage  of  this  point  before 
the  jury;  and  one  of  the  errors  which  they  have  assigned  is,  that 


OF  PENNSYLVANIA.  175 

the  judge  was  mistaken  in  charging  the  jury  that  the  evidence      1806. 
on  the  part  of  the  defendants  did  not  prove  that  they  acted  on  Griffith 
probable  cause.  t., 

2.  The  old  writ  of  conspiracy  charges  a  conspiracy  in  the  de-      Ogle. 
fendants;  and  that  conspiracy  is  the  ground  of  the  action.  In 

the  present  action  likewise  the  conspiracy  is  the  gist  of  the  action, 
although  it  may  be  necessary  to  shew  some  act  in  execution  of 
it.  The  declaration  does  charge  such  act;  and  we  are  of  opinion 
that  inasmuch  as  the  conspiracy  was  to  accuse  the  plaintiff  of 
an  offence  for  which  he  was  liable  to  indictment,  and  removal 
from  office,  the  law  implies  damage. 

3.  As  to  the  opinion  of  the  judge  that  the  defendants  had  not 
proved  probable  cause,  we  think  he  was  right.  It  is  meritorious 
to  make  candid  inquiries  into  the  conduct  of  magistrates,  and  to 
prosecute  them  in  case  of  extortion.  But  light  reports  do  not 
justify  such  conduct  as  was  pursued  by  the  defendants;  espe- 
ciallv  as  the  plaintiff  had  explained  to  Mr.  Ogle  the  true  nature 
of  the  transaction,  before  he  had  taken  any  measure  in  pursuance 
of  the  conspiracy. 

1T51       Upon  the  whole  we  are  of  opinion  that  the  judgment  of  the 
9c»si  Circuit  Court  should  be  affirmed  with  costs. 

Judgment  affirmed. 


***!;       Lessee  of  Simpson  afrainst  Ammons  and  others.      Pittsburg, 

2H7|  beptcinber 

»«TN  this  cause  a  case  was  stated  for  the  opinion  of  the  court,  I3th. 

[_  '^1-*-  which  in  substance  was  as  follows:  Jolm  Bayiiton^  '^^'^^^^executed^by 

IVharlo?!,  and  George  Morgan^  were  seised   in  fee   as  join-  ♦wo  out  of 

tenants  of  the  premises  in  question  on  the  1st  of  August  1767.  nanis  is  a 

On  the  11th  of  November  1769,  Baynton  and  wife,  ^T/or^an  severance  of 

and  wife,  and  Baynton  for  IVhartony  but  without  any  aiitho-  tenancy' 

rity  from  him,  executed  a  mortgage  of  the   premises  to  5c;2-T'>c  assig- 

jomin  Marshal!.   After  the   death  of  Marshall  the  mortgagee,  adnnnistra- 

his   administr.iiors  on   the    \5th  yanvary  1801,   assigned   the""^<''» 

mortgage  to  the  lessor  of  the  j)laintiff.  Baynton  and  Wharton  xx\k\  main- 

dicd  nefore  the   28th  April  1802;  and  on  that  date  TJ/o/p-on^'*'''*"  <'i«'c' 

1111/1  •  l_       1  XII-         ""■"'    '"  '•"* 

conveyed  the  whole  of  the  premises  to  the  lessor  or  the  piam- o^n  name, 
tiff.  The  questions  were  two:   First,  Whether  the  mortgage 


176  CASES  IN  THE  SUPREME  COURT 

1806.  severed  the  jointenancy.    If  it  did,  the  deed  of  Morgan  in 

"^  1802,  convt-yed   but  a  third;  otherwise  it  was  good  for  the 

of  whole:  Secondly,  Whether  the   assignee  of   the  administra- 

SiMi'"ON  tors  of  a  mortgagee  can  maintain  an  cjectmcr'.t  in  his  c<-vn 

''•         name;  for  if  he  can,  the  plainiiff  was  entided  to  two  thirds, 
Ammons.  I  1     1      •    •  , 

even  though  the  jomtenancy  was  severed. 

Riddle  for  the  plaintiff.  A  mortgage  is  a  mere  security  to  the 
mortgagee;  it  is  not  a  disposition  of  the  land,  which  is  essen- 
tial to  sever  a  jointenancy.  If  it  is  redeemed  by  the  jointenant 
who  makes  it;  he  does  not  hold  under  the  mortgagee,  but  under 
his  old  title,  which  in  equity  has  been  all  along  in  him.  A  gt mt 
of  a  moiety  would  no  doubf^  sever,  and  so  does  a  grant  revoke 
a  devise;  but  a  mortgage  is  no  revocation  of  a  devise.  4  Bac, 
Abr.  697.  2  Eq.  Abr.  538.  A  recognisance  which  binds  the 
land,  Is  no  severance  unless  it  is  executed  in  the  life  of  the  re- 
cognitor. Co.  Lift.  184.  /;. 

There  is  no  doubt,  that  a  mortgagee  may  maintain  an  eject- 
ment in  Pennsyhunia.  [This  was  conceded  by  the  whole 
court.]  It  is  equally  clear  that  an  administrator  is  entitled  to 
the  benefit  of  a  mortgage,  unless  it  has  been  foreclosed,  or  the 
equity  of  redemption  has  been  released.  Tabor  v.  Grover.  (a) 
MarshalPs  heirs  were  therefore  trustees  of  the  legal  estate  for 
the  benefit  of  the  administrators,  and  of  course  for  the  benefit 
of  their  assignee,  the  lessor  of  the  plaintiff.  Now  it  is  settled 
law  in  this  state,  that  a  ce.itui  que  trust  may  support  an  eject- 
ment in  his  own  name. 

Addison  for  the  defendants.  Tork  \.  Stone  et  al.  {b)  has  decided 
the  first  question;  and  it  has  been  recognised  as  law  ever  since. 
4  Bac.  Abr.  697.  It  is  for  the  interest  of  both  parties  that  the 
mortgage  should  be  construed  a  severance;  for  if  not,  upon  the 
death  of  the  mortgagor  his  representatives  lose  his  estate,  and 
the  mortgagee  his  security.  It  was  here  an  alienation  in  fee  to 
be  void  on  a  subsequent  event,  which  is  a  severance  at  law.  Co. 
Litt.  189.  a.  sec.  294. 

I  deny  that  the  administrators  could  maintain  ejectment  in 
their  own  name.  The  act  of  Assembly  gives  them  a  scire  facias. 
but  not  an  ejectment. 

^0  2  Vern.  367.  ib)  1  ."ialL  158. 


OF  PENNSYLVANIA,  I77 

TiLGHMAN  C.  J.  delivered  the  opinion  of  the  court.  1806. 

This  case  comes  before  the  court,  on  a  case  stated  for  their     Lessee 
opinion.  of 

Baynton,  Uliort07i,  and  Morgan,  being  seised  in  fee  simple  as  Simpson 
jointcnants  of  the  land  in  question,  a  mortgage  was  executed  ^ji^^'ioy^. 
by  Baynton  and  Morgan^  and  by  Baijnton  for  JF/iarton,  to  BeJi- 
janiin  Marshall;  but  Baynton  had  no  authority  to  execute  the 
mortgage  in  the  name  of  Wharton.  The  administrators  of 
Marshall,  who  is  dead,  assigned  this  mortgage  to  the  lessor  of 
the  plaintiff,  who  also  obtained  a  conveyance  of  the  whole  land 
irom  Morgan^  since  the  death  oi  Baynton  and  Wharton.  On 
this  case  two  points  arise:  First,  Whether  the  jointenancy  was 
severed  by  the  mortgage:  Secondly,  Whether  the  assignee  of 
the  administrators  of  a  mortgagee  can  support  an  ejectment  iu 
his  own  name. 

As  to  xhc  first,,  the  court  are  of  opinion  that  the  mortgage 
was  a  severance  of  the  jointenanc}-.  The  interest  of  Baynton 
and  Morgan  passed  by  it,  but  the  interest  of  Wharton  was  not 
affected. 

As  to  the  second  point,  the  legal  estate  in  the  two  thirds  con- 
veyed to  Marshall,,  descended  on  his  death  to  his  heirs.  But 
the  mortgage  being  in  effect  only  a  security-  for  a  debt  due  to 
the  estate  of  Marshall,,  his  heirs  were  trustees  for  the  benefit  of 
tlie  administrators,  who  were  entitled  to  the  debt.  It  was  de- 
termined in  the  case  of  Kennedy  v.  Fury,,  1  Dall.  72.  that  cestui 
que  trust  may  support  an  ejectment  in  his  own  name.  This 
decision  is  founded  on  the  peculiar  situation  of  Pennsylvania^ 
where  there  is  no  Court  of  Ciiancery,  to  prevent  inconveniences 
which  might  arise  from  the  obstinacy  of  trustees,  who  might 
refuse  to  assist  in  the  recovery  of  lands.  It  appears  to  us  that 
the  case  before  us  falls  within  the  same  j)rinciple.  The  equita- 
l)le  interest  of  the  mortg;ige  is  completely  vested  in  the  lessor 
of  the  plaintiff,  and  no  third  person  can  be  affected  b)  his  reco- 
very in  this  ejectment.  We  are  of  opinion,  therefore,  that  he 
may  recover;  but  as  the  interest  of  Wharton  is  not  vested  in 
him,  he  can  recover  but  two  thirds  of  the  land  for  whicli  the 
action  is  brought. 

Vol..  T.  / 


178  CASES  IN  THE  SUPREME  COURT 

1806. 
r~~  M'MiLLAN  «p-(7mj.'^  Birch.  ib  nil 

Pttts''ltrg,  <^  2s  r  30 

Sdtur.'av,  7sr53r) 

Srpi.mber  In   ErROR.  il^^m 

loth.  J1J68) 

To  call  a       T~^HIS  cause  came  before  the  court  by  writ  of  error  from  the 

cler?\  man  a    A    Circ  uit  Court  of  Washington  county. 

nciionable.         ^^  ^^'^s  an  action  of  slander  brought  b\-  Birch  against  M^- Mil- 

Words spo-   /^;^  for  calling  liini  "a  liar,  a  drunkard,  and  a  preacher  of  the 

dffetu'laiit  of"  devil.''  The  declaration  stated  that  the  phxintifF  was  "  a  man 

ami  to  the     "  of  learning,  integrity,  and  piety,  and  that  for  twenty  eight 

ton  arhuich"  years  last  past  he  had  been  and  then  was  a  minister  of  the 

rrcsbytcry,  a  gospel  in  the  Presbyterian  church,  and  had  taken  upon  him- 
111  the  course      or  j  ... 

of  his  de-      "  self  the  orders  of  the  same."  It  also  laid  a  special  damage  in 

fence njjamst  consequence  of  the  slander,  viz.  that  the  plaintiff  was  refused 

tliere  admission  into  the  Presbytery  of  Huntingdon  as  a  member. 

hroiight        Picas,  not  Ruiltv,  act  of  limitation,  and  justification. 

apainst  him  >  o        .  >  >  j 

I'V  the  plain- 

iif>,  are  not        jj  ^^.^^  proved  at  the  trial  of  the  cause,  that  the  plaintiff"  was  a 

actionable, "  „       ,  .  .    .  .  . 

he  docs  not  Presbyterian  mmister,  regularly  ordamed  m  Ireland;  that  he 

V.  ander         came  to  the  United  States  in  1 798,  and  on  producing  his  cre- 

desi.q-nedlv  .  .  .  (.  . 

from  tlie  '     dentials  to  the  standing  committee  of  the  Presbyterian  church 

point  in         jj^  Philadelphia,  was  permitted  to  preach  there;  that  he  after- 
question,  for  ....  . 
tlie  purpose  Wards  came  with  his  family  to   Washington  county;  that  upon 

?i!.""*^''"^    an  application  made  to  th    Ohio  Presbytery,  he  was  rejected  for 

%'.  Whether  want  of  experimental  knowledge i  and  that  he  appealed  from 

euig  re  us-  ^j^^jj.  sentence  to  the  General  Assembly,  who,  after  examining 
ed  admission  -"  '  b 

into  a  Pies-  and  considering  the  case,  did  not  pass  anj^  censure  on  the  Ohio 
surh'^snc  iai  ^''^sbytery,  but  determined  that  they  found  no  ground  why  any 
damap^e  as  Presbytery  should  not  take  the  plaintiff  up,  and  proceed  with 
take  Roticc  ^^'^  agreeably  to  the  rules  and  regulations  in  such  cases  pro- 
of, vided. 

The  plaintiff  afterwards  cited  the  defendant,  who  was  also  a 
clergyman,  before  the  Presbytery  of  Ohio,  to  answer  for  slander 
and  for  unchristian  threatenings.  The  defendant  appear!.:d  and 
\vas  heard  in  his  defence.  The  Pr^■sbytery  acquitted  the  de- 
fendant of  the  charges  brought  against  him,  except  for  calling 
the  plaintiff  '•  a  preacher  of  the  devil,"  for  which  they  repri- 
manded the  defendant,  and  he  submitted.  The  plaintiff"appealed 
again  to  the  General  Assembly;  but  apprehending  that  he  should 
not  obtain  a  favourable  decision,  in  consequence  of  his  having 


V. 

Birch. 


OF  PENNSVLVANIA,  179 

committed  some  irregularities  in  IVashi'g-ion  county,  by  adml-      1806. 
nistering  the  sacrament  and  ordaining  elders,  in  violation  of  the    7y|iT\jjL, 
rules  of  the  church,  he  gave  up  his  appeal,  and  withdrew  from       lan 
the  jurisdiction  of  the  General  Assembly;  after  which  the  As- 
semblv  determined  that  they  would  have  nothing  more  to  do 
with  him,  and  that  he  never  had  been  in  union  with  the  Presby- 
terian church  in  the  United  State  .,  so  as  to  be  authorized  to 
preach  as  one  of  their  ministers. 

The  plaintiff  proved  also  as  laid  in  the  declaration,  that  he 
failed  in  his  application  for  admission  into  the  Presbytery  of 
Huutin^g-don. 

The  words  laid  in  the  declaration,  or  some  of  them,  were  spo- 
ken of  and  to  the  plaintiff"  in  the  Presbytery  of  Ohio,  while  the 
defendant  was  making  his  defence  against  the  plaintiff's  charge. 

The  cause  was  heard  before  Judges  Yeates  and  Smith,  in 
October  1804;  and  the  counsel  for  the  defendant,  among  other 
things  objected  1st,  that  the  action  could  not  be  maintained  by 
the  plaintiff  for  words  spoken  of  him  in  his  profession  of  a  mi- 
nister of  the  Presbyterian  church,  because  the  evidence  shewed 
that  he  did  not  hold  that  office;  and  2dly,  that  words  spoken  by 
the  defendant  in  Presbytery,  while  making  his  defence  against 
the  plaintiff's  charge,  were  not  actionable.  Upon  both  points  the 
court  charged  for  the  plaintiff,  and  sealed  a  bill  of  exceptions. 
The  jury  found  for  the  plaintiff. 

'  Rons  and  Addison  for  the  plaintifl"  in  error,  made  four  points: 
1st,  tliat  the  plaintiff  below  stated  in  his  declaration  that  he 
had  been  twenty  eight  years  a  clergyman  of  the  Presbyterian 
church,.and  was  so  then.  IJut  it  was  proved  that  he  never  was 
a  ckrg)'raan  of  that  cluirch  in  the  United  States;  therefore  he 
failed  in  supporting  his  action.  2d,  That  the  words  laid  were 
not  actionable,  if  spoken  of  a  person  not  a  clergyman.  3d,  That 
the  special  damage  laid  was  not  f)f  a  civil  but  ecclesiastical  nature, 
which  the  lav.  would  not  notice.  4th  That  the  words  spoken  by 
the  defendant  in  his  defence  before  the  Presbytery,  were  not  ae- 
♦ional)le. 

1.  The  plaintiff  must  prove  his  case  as  it  is  laid  in  his  dccla 
ration,  and  should  have  shewn  that  he  was  a  clergyman  of  the 
Presbvterian  church  at  the  tinic  the  words  were  spoken.  ColHi; 


1  80  CASKS  IN  THE  SUPREME  COURT 

1806.      v*  J^folhi.  (f/)  It  a  bnrristcr  bring  an  action  for  words  which  arr 
M'iMii-    '^  disgrace  to  him  in  his  profession,  he  must  aver  that  at  the  time 
LAK        of  publishing  them  he  was  a  practising  hxwyer.   He  must  aver 
"^^         that  lie  was   "  homo  conci/iariu.s  in  Icgt-;^^    "  homo   cntditus^^ 
^^^'^"*     will  not  do.   C->  Bac.  Abr.  (Giri//.)  210.  218.  219.   1  Com.  Dig. 
276.  The  principle  upon  which  these  and  all  the  cases  upon  the 
same  point  proceed,  is  this,  that  the  words  being  actionable  only 
as  they  are  spoken  of  persons  in  a  particular  trade  or  profession, 
it  must  be  shewn  that  the  plaintifl'  was  of  that  trade  or  profession 
at  the  time  of  the  words  spoken,  or  the  very  essence  of  the  ac- 
tion is  wanting.  We  have  in  this  case  the  highest  authority  of 
the  Presbyterian  church  for  saying  that  rhe  plaintiff  never  has 
I)een  a  minister  of  that  ehurcli  in  the  United  States:   His  having 
been  so  in  Ireland,  according  to  Coi/i.s  v.  Ma/in  will  not  answer. 
It  was  there  laid  that  the  plaintiff  had  used  per  magnum  tempiis 
the  trade  of  buying  and  selling  &c;  but  because  it  was  not  siated 
that  he  used  it  at  the  time  the  words  were  spoken,  it  was  ad- 
judged for  the  defendant. 

2.  No  charge  of  a  general  misfeasance  is  actionable,  unless 
the  words  are  applied  to  the  trade  or  calling.  1  Com.  Dig. 
268,  9.  Stanhope  v.  Blith  {b)^  Savile  v.  Jardine  (c).  In  or- 
der to  make  words  actionable,  they  either  must  contain  an  ex- 
press imputation  of  some  crime  liable  to  punishment,  some 
capital  oflVnce  or  other  infamous  crime  or  misdemeanor,  or 
they  must  be  spoken  of  one  in  an  office  of  profit,  which  may 
probably  occasion  the  loss  of  his  office,  or  of  persons  touching 
their  respective  professions  trades  and  business,  and  do  or  may 
probably  tend  to  their  damage.  Omloxv  v.  Home,  {d)  The  words 
"  liar  and  drunkard"  may  be  used  with  impunity;  they  are  ex- 
pressions of  anger,  and  not  of  malice.  3  Bl.  Comm.  124.  note  5 
Chr.  And  as  to  the  phrase  "  preacher  of  the  Devil,"  it  certainly 
is  no  worse  than  "  brazen  faced  Belzcbub,"  or  "  Devil,"  or 
"  prince  of  darkness,"  which  are  not  suable,  because  they  im- 
port passion,  but  no  crime  or  discredit.  Smith  v.  Wood,  (c)  The 
rule  in  Smale  v.  Hamvion^  {/)  that  where  the  words  spokei; 
tend  to  the  disgrace  infamy  or  discredit  of  the  party,  they  art 
actionable,  has  been  repeatedly  overruled.  Holt  v.  Schoffield.  [g 

(a)  Cro.  Car.  282.  (c)  2  Salk.  692- 

(6)  M{ep.  15.  (/)  1  Bulstr.  40. 

(c)  2  //.  Bl.  531.  ff )  ^T)   is;  E.  693 
(</)  3  WiU.  IPfl. 


OF  PENNSYLVANIA.  181 

i.  This  point  was  not  made  at  the  trial.  If  the  words  are  not      180G. 
actionable  in  themselves,  this  kind  of  damage  cannot  make  them  "tTrVivi     " 
so.  The  law  has  no  measure  for  it;  it  is  arbitrary  to  the  last  de-        j^y^^j,- 
gree.   It  is  an  injury  purely  ecclesiastical;  for  the  Presbytery 
has  no  salary,  no  living,  no  preferment;  and  if  the  plaintiff  could     1jiR<^"- 
not  gain  admission  in  one  place,  he  might  have  gone  to  another. 
The  special  damage  must  be  of  a  temporal  nature;  and  so  it  is 
universally  laid. 

4.  The  plaintiff  complained  to  the  Presbytery  of  the  woixls 
laid  in  the  declaration;  and  at  his  instance  the  defendant  appear- 
ed and  went  into  his  defence.  If  he  had  travelled  out  of  his  case 
to  slander  the  plaintift",  it  is  unnccessaiy  to  sav  what  the  law 
AS'ould  be;  but  it  was  in  the  very  matter  charged  that  the  words 
were  used,  and  they  were  therefore  justifiable  from  the  occasion 
of  using  them.  The  original  words  are  out  of  the  question;  they 
were  barred  by  the  statute.  There  is  no  head  of  the  law  in 
which  the  cases  are  more  uniform  than  in  this;  and  they  turn 
upon  a  principle  which  at  once  favours  the  peace  of  society,  and 
the  security  of  the  individual;  that  where  there  is  a  proper  occa- 
sion for  speaking  the  Vv'ords,  the  law  will  not  implv  malice  even 
from  their  falsehood.  It  i.^  on  this  ground  that  a  servant  cannot 
maintain  an  action  against  his  former  master,  for  words  spoken 
in  giving  his  character,  unless  he  prove  both  malice  and  false- 
hood; even  though  the  master  make  specific  charges  of  fraud. 
Weathcrfitcn  v.  Hawkins.  («)  In  a  court  of  justice  it  is  essentia! 
that  the  defendant  be  allowed  to  speak  freely  in  his  defence;  and 
where  a  charge  or  recrimination  is  made  bv  him  upon  the  point 
in  question,  an  action  will  not  lie.  It  was  thus  ruled,  where  the 
defendant  bv  his  affidavit  exhibited  in  court,  allei;ed  that  the 
plaintiff  had  s^vorn  falsely.  A.ttlij  v.  Tounir.  (^/i)  The  same  o! 
words  spoken  before  a  justice  of  the  peace,  upon  a  question  of 
binding  to  good  behaviour.  Caller  \.  Dixon,  (r.)  So  of  a  bill 
exhibited  to  the  Starchambu-,  which  is  not  a  court  of  record, 
provided  the  court  had  jurisdiction  of  the  mattir.  Burklcij  v. 
Wood,  (r/)  And  so  where  in  a  suit  in  the  spiritual  court,  the  de- 
fendant put  in  an  exception  to  a  witness,  that  he  ivrs-  perjurcdi 
because  said  the  court,  it  is  in  the  course  of  justice,  and  not  ex 
malitia.  Weston  v.  Dobnicl.  (r)  Tiie  law  extends  the  privilege 

{a)   1  D.  iSfM.  110.  (c)  \  Rep.  M  h.  (c)  Co.  Jac  \Cr.. 

(V  ?  Birr.  80-  (,!)  Crr.  Eliz  2J0.  213. 


V. 
BlUCH 


182  CASES  IN  THE  SUPREME  COURT 

1806.  to  the  counsel  of  a  party,  who  mav  justify  even  a  charge  of 
M'MiL-  felony*  as  being  spoken  in  the  legal  and  necessary  txertise  of 
LAN  his  profession.  Brook  v.  Montague,  (a)  Now  that  this  mrtter 
was  before  a  competent  tribunal  cannot  be  disputed.  It  does 
not  indeed  proceed  by  temporal  punishment,  but  it  had  in  this 
instance  a  jurisdiction  I)y  consent,  both  parties  having  appeared; 
and  it  might  severely  have  punished  the  defendant,  by  expelling 
him  from  the  church.  The  rights  of  conscience  and  of  public 
worship  are  protected  by  the  constitution;  and  with  the  latter 
is  inseparably  connected  the  discipline  of  the  church.  To  deny 
the  Presbytery  the  right  of  investigating  complaints  which  affect 
a  member,  is  to  overthrow  their  discipline,  and  with  it  many  of 
the  interests  of  religion  which  discipline  sustains.  The  Court 
of  King's  Bench  has  indirectl)'  su])ported  the  discipline  of 
Friends.  King  v.  Hart.  (/;)  It  is  of  public  convenience. 

Mountain  for  the  defendant  in  error  contended  that  whe- 
ther the  plaintiff  below  was  or  was  not  a  minister,  to  call  him  a 
drunkard  was  actionable  in  Pennsylvania.  Drunkenness  is  not 
only  immoral,  but  it  subjects  the  party  to  temporal  punish- 
ment. It  is  not  a  charge  of  so  general  a  nature  as  to  be  of  no 
effect  for  want  of  precision;  but  it  specifically  fixes  upon  the  in- 
dividual an  otTence  against  the  law,  which  subjects  him  to  a 
fine,  or  in  case  of  his  inability  to  pay  it,  to  imprisonment  in 
the  house  of  correction.  Many  of  the  modern  cases  have  been, 
to  use  Lord  Holt's  expression,  too  learned  on  this  point.  His 
own  rule  contains  the  sense  of  the  best  authorities,  and  certain- 
ly contributes  most  to  the  public  good;  "  Where  words  tend  to 
"  slander  a  man,"  said  he,  "  or  to  take  away  his  reputation,  I 
"  shall  be  for  supporting  actions  for  them,  because  it  tends  to 
"  preserve  the  public  peace;"  and  the  doctrine  was  adopted  by 
the  court.  Baker  v.  Pierce  (c),  Harrison  v.  Thornbitry  (d). 

But  at  all  events  the  words  are  actionable  M'hen  spoken  of  a 
elergyman.  They  necessarily  destroy  his  influence;  they  take 
from  him  his  hearers;  and  they  deprive  him  thereby  of  his  sub- 
sistence. There  is  a  case  in  Alleyn  63.  Dodd  v.  Robinson^  pre- 
cisely in  point,  that  an  action  lies  for  calling  a  clergyman  a 
drunkard.  C  Bac.  Abr.  215.  It  is  the  same  as  to  call  a  physician 

(a)  Cro.  yac.  90    6  Bac.  Ahr.  224.  (c)  2  Lord  Ray.  960. 

C/')  1  Wm.  Bl.  1H0  (d)  GHb.  Hep.  in  P..  JO.  UT 


BlUCH. 


OF  PENNSYLVANIA.  183 

a  quack,  or  a  lawyer  a  knave.  So  to  charge  a  clergyman  with  1806. 
incontinence.  Harthi  v.  Herrings,  (a)  The  only  question  then  is,  jynj^liL- 
whether  the  plaintiff  was  a  clergyman  at  the  time  the  words  were  lan 
spoken;  and  of  this  there  can  be  no  doubt.  He  is  not  stated  to 
have  lieen  a  minister  in  communion  with  the  Presbyterian  church 
in  the  United  States,  but  simply  a  minister  of  the  gospel  in  the 
Presltyterian  church.  He  was  ordained  in  that  church  in  Ireland, 
he  was  received  by  the  Presbvtery  in  Philadelphia^  and  permit- 
ted to  preach  by  the  standing  committee;  and  he  accordingly 
supported  himself  by  the  exercise  of  that  office.  The  very  re- 
ception in  this  state  recognised  tht  ordination  in  Ireland;  and 
whether  it  did  or  not,  this  court,  having  proof  of  a  regular  ordi- 
nation abroad,  and  of  a  continuance  in  the  exerciseof  the  cleri- 
cal office  here,  would  be  bound  to  consider  him  as  a  clerg\'man 
of  that  church  in  which  he  was  ordained.  A  minister  of  a  cer- 
tain church  remains  so  until  he  abandons  it,  or  is  deprived  for 
misbehaviour. 

The  rejection  from  the  Huntingdon  Presbytery  was  not  mere- 
ly an  ecclesiastical  loss.  It  deprived  him  of  an  opportunity  to 
receive  a  call  from  a  parish  in  communion  with  the  church  in 
America.  It  is  one  part  of  a  clergyman's  preferment,  which  the 
law  so  far  considers  of  a  temporal  nature,  a^  it  naturalh  leads  to 
temporal  good. 

If  words  spoken  colourably  by  a  party  in  his  defence  are  not 
actionable,  suits  at  law  will  become  instruments  of  defamation: 
and  certainly  it  is  a  mere  colour  of  defence,  to  reiterate  slander, 
as  was  done  in  this  case,  under  the  pretence  of  justif\  ing  it.  As 
it  respects  courts  of  justice  in  England^  the  rule  has  however 
been  settled  to  a  certain  extent,  and  cannot  be  questioned.  Biu 
5t  is  uniformly  stated  to  apply  exclasivcly  to  cases  "  in  the 
course  of  justice;''''  and  nothing  is  more  clear  than  that  the  course 
of  justice  lie  s  onU'  through  Courts  cstai)lished  by  the  law  of  the 
land.  The  spiritual  court  has  in  that  kingdom  very  extensive  au- 
tiiority  over  both  person  and  property,  and  therefore  stands  up- 
on the  same  footing  in  this  respect  with  the  other  courts  of  the 
realm.  Hut  the  Presbytery  is  not  even  known  to  the  law;  it  ex- 
ists and  acts  bv  consent.  A  proceeding  before  that  body  is  no 
more  in  the  course  of  justice,  than  if  it  were  before  any  self-cre- 
nted  society  whatsoever.   Their  rules  have  no  contact  with  the 

',A  8  D   ISf  /•:.  130. 


134  CASES  IN  THK  SUJ'RKMK  COUKT 


LAX 


1806.  l^ws  of  the  land;  and  although  they  mav  regulate  the  disciphuc: 
oi  many  churches,  the  law  must  be  the  same  as  though  the} 
govei-ned  but  one.  If  a  defendant  can  justify  vvords  because 
V.         uttered  in  his  defence  before  such  a  body,  he  may  do  it  if  ut- 

BiRcii.  tared  before  any  body  of  men  sitting  upon  the  question,  any 
where,  and  under  all  circumstances. 

TiLGHMAN  C.  J.  after  stating  the  facts,  delivered  his  opinion 
as  follows: 

The  bill  of  exceptions  contains  two  points:  1.  That  upon  the 
evidence  given,  the  action  could  not  be  maintained  by  the 
plaintiff,  for  words  spoken  of  him  in  his  profession  of  a  minis- 
ter of  the  Presbyterian  church.  2.  That  the  words  spoken  by 
the  defendant,  while  making  his  defence  before  the  Ohio  Pres- 
bytery, against  the  charge  exhibited  against  him  by  the  plaintiff" 
for  slander,  were  not  actionable.  On  both  these  points  the  court 
charged  in  favour  of  the  plaintiff. 

In  arguing  the  cause  btioi-e  us,  the  counsel  for  the  plaintiff  in 
error  made  lour  points  which  it  will  be  necessary  to  consider. 
1.  That  the  words  spoken  are  not  actionable,  applied  to  persons 
m  general.  2.  That  they  are  not  actionable  when  applied  to  the 
pLiintlir  on  the  evidence  in  this  cause.  3.  That  exclusion  from 
the  Huntingdon  Presbytery  is  no  temporal  damage,  nor  such  as 
the  law  will  take  any  notice  of,  or  suffer  damages  to  be  recover- 
ed for.  4.  That  the  words  spoken  by  the  defendant  in  his  de- 
fence before  the  Ohio  Presbytery  art  not  actionable. 

First  and  second.  Whether  the  words  are  actionable  applied 
to  persons  in  genLiai,  I  think  it  unnecessary  to  decide,  because 
I  am  clearly  of  opinion  they  are  actionable  as  applied  to  the 
plaintiff.  The  reason  wh)-  certain  expressions  are  actionable 
when  t.ppiicd  to  persons  of  certain  professions  is  this:  that  from 
the  nature  of  the  case  it  is  evident  that  damage  must  ensue.  To 
say  of  a  merchant  that  he  is  a  ijankrupt,  or  of  a  lawyer  that  he  is 
a  knave,  must,  if  believed,  necessarily  produce  damage.  So  to 
say  of  a  clergyman  that  he  is  a  drunkard;  because  these  words 
if  believed,  must  deprive  him  of  that  respect,  veneration,  and 
confidence,  without  which  he  can  expect  no  hearers  as  a  minis- 
ter of  the  gospel.  Exjiress  authority  has  been  produced  to  shew 
that  these  words  are  actionable,  spoken  of  a  clergyman  in  En- 
trland.  'I'he  defc-nclant's  counsel  do  not  say  that  thf  character  of 
a  clergyman  is  less  sacred  Or  less  worthy  oi" protection  here,  than 


OF  PENNSYLVANIA.  185 

in  England;  but  they  object,  that  hiasrauch  as  the  plaintiff  was      1806. 
never  admitted  to  the  rights  of  a  Presbyterian  clergyman  in  the    j\ii]\Iil. 
United  States^  he  has  failed  in  proving  his  case  as  stated  in  his        lan 
Narr.  But  in  answer  to  diis  it  is  to  be  remarked,  that  he  has  not         ■^'• 
said  he  was  a  minister  of  the  Presbvterian  church  in  the  United       ^ 
States;  he  only  savs  in  general  that  he  was  a  minister  of  that 
church,  and  so  he  undoubtv  dlv  was;  for  he  was  ordained  in  Ire- 
land^ and  was  never  degraded  from  holy  orders.  He  was  what 
the  Presbyteries  and  General  Assembly  in  the  United  States  call 
•A  foreign  minister ;  and  in  that  capacity  he  might,  if  he  thought 
proper,  preach  and  receive  money  for  preaching,  from  any  that 
chose  to  pav  liim,  without  the  consent  of  any  Assembly  or  Pres- 
bytery. Or  if  he  proceeded  in  a  regular  way,  and  obtained  their 
consent,  no  new  ordination  would  have  been  necessary;  which 
is  an  incontestible  proof  that  the  church  here  recognises  an  or- 
dination in  Ireland^  as  investing  a  clergyman  completely  with  the 
order  of  the  ministry.  The  plaintifT  therefore  was  a  minister  of 
the  Presbyterian  church;  and  the  words  spoken  of  him,  if  be- 
lieved, must  necessarily  preclude  him  from  any  employment, 
•.vhercbv  he  might  obtain  a  living  in  the  American  church. 

Third.  This  point  is  not  mentioned  in  the  bill  of  exceptions. 
No  objection  was  made  to  the  charge-  of  the  court  in  this  re- 
spect. I  think  it  tiierefore  immaterial.  There  can  be  no  error  in 
the  record,  on  account  of  special  damages,  because  the  words 
arc  actionable  in  themselves,  and  the  law  implies  damage.  Even 
supposing  for  argument's  sake  that  the  loss  of  admission  into  a 
Presbytery  was  not  a  matter  lor  which  damages  could  be  reco- 
vered, (which  be  it  remembered  I  by  no  means  assert)  it  would 
be  unwarrantable  to  suppose  after  a  verdict,  that  the  jury  had 
givtn  damJges  on  that  account.  Courts  are  always  disposed  to 
support,  and  not  to  destroy,  the  verdicts  of  juries. 

I'ourth.  I  come  now  to  the  last  point,  the  only  one  which  is 
attended  with  any  difficulty.  It  was  rai^td  suddenly  in  the 
course  of  the  trial;  it  was  new;  and  tlic  judges  who  tried  the 
cause,  and  who  were  obliged  to  declare  their  opinions  in  a  short 
time,  delivered  the  inipressien  of  their  minds,  not  without 
doubt.  I  have  given  it  the  attentive  consideration  that  it  merits; 
and  though  I  cannot  but  feel  difhdenre  when  I  disagree  with 
the  rcspcctal;!',:  and  learned  gentlemen  before  whom  llie  trial 
was  had,  1  will  proceed  to  ofi'er  my  reason-;  for  thinking  thai 

Vol.  I,  2  A 


BiKCH. 


186  CASES  IN' THE  SUPREME  COURT 

1806.      the  words  spoken  by  the  defendant,  when  making  his  defence 
~"jj^j7jvr~"  before  the  Presbytery,  are  not  actionable. 

LAN  I  consider  malice  as  an  essential  ingredient  in  slander.   If  I 

say  of  a  man  that  he  is  a  thief,  or  that  he  committed  murder, 
the  law  implies  malice  in  general;  and  it  lies  on  mc  to  shew  that 
there  was  no  malice  in  my  heart.  This  I  may  do  in  various 
ways.  I  may  shew  that  I  used  this  expression  wli^-n  examined 
as  a  witness  in  a  court  of  justice;  or  when  I  was  concerned  in 
a  prosecution,  as  attorney  for  the  Commonwealth;  and  although 
I  was  mistaken  in  the  fact,  no  action  lies.  The  occasion  of  my 
speaking  l)eing  called  upon  by  others,  and  only  acting  in  the 
course  of  mv  duty,  preclude  the  idea  of  malice.  So  what  is  said 
by  mvself  or  my  attornies  in  mv  defence  in  a  court  of  justice  is 
not  actionable;  not  only  because  of  the  occasion  of  my  speak- 
ing, but  also  because  the  public  good  requires  that  every  man 
should  be  allowed  to  speak  freely  in  his  own  defence.  It  is  the 
same  with  regard  to  what  I  say  as  plaintiff  in  an  action;  because 
there  is  as  much  reason  why  persons  should  enjoy  freedom  of 
complahity  as  freedom  of  defence.  But  if  any  man  should  abuse 
this  privilege,  and  under  pretence  of  pleading  his  cause,  wander 
designedly  from  the  point  in  question,  and  maliciously  heap 
slander  upon  his  adversary,  I  will  not  say  that  he  is  not  respon- 
sible in  an  action  at  law. 

This  freedom  of  speech  in  what  is  called  a  course  of  justice. 
is  not  confined  to  courts  of  commoti  law.  Cases  have  been  cited 
to  shew  that  it  is  extended  to  proceedings  in  ecclesiastical 
courts,  and  proceedings  before  justices  of  the  peace;  and  I  have 
no  doubt  but  it  should  likewise  be  extended  to  proceedings  be- 
fore referees. 

The  objection  in  the  case  before  us  is,  that  Presbyteries  and 
General  Assemblies  are  not  courts  of  justice.  Certainly  they  are 
not;  and  depositions  taken  before  them  are  no  evidence  in 
courts  of  justice,  because  they  have  no  authority  to  administer 
an  oath;  and  a  person  swearing  falsely  could  not  be  indicted  for 
])erjury.  But  although  they  are  not  courts  of  justice,  they  arc 
liodies  enjoying  certain  rights,  established  by  long  custom,  and 
not  forbidden  by  any  law.  They  can  inflict  no  temporal  punish- 
ment; and  their  jurisdiction  is  founded  on  the  consent  of  the 
members  of  the  church.  No  extensive  church  can  preserve  de- 
cency, good  order,  or  purity  of  manners,  without  discipline.  It 
serves  to  correct  a  multitude  of  evils,  which  cannot  and  ought 


OF  PENNSYLVANIA.  18' 

lOt  to  be  subject  to  temporal  cognisance.  It  corrects  them  too      1306. 

m  a  manner  the  most  mild,  the  most  private,  and  the  least  scan-  ~  , , 

,  •    •     •  1-   •        •  I.  f  M'MiL- 

dalous  and  mjunous  to  religion;  in  u  manner  that  may  reiorm        j^^j, 

the  offender,  nithout  exposing  him  to  the  open  scorn  and  ridi-  -■. 

cule  of  the  world;  circumstances  which  sometimes  render  men  Birch. 
desperate.  A  jurisdiction  of  this  kind,  exercised  only  over 
those  who  consent  to  it,  certainly  must  be  productive  of  good 
effects;  and  it  appears  to  me  that  the  persons  thus  consenting 
and  pleading  their  causes  either  in  a  course  oi  complaint  or  de- 
fenccy  fall  within  the  principle  applied  to  those  who  are  speaking 
in  courts  of  justice.  If  thty  conduct  themselves  in  a  decent 
manner,  the  occasion  of  speaking  makes  it  improper  that  the 
law  should  imply  malice.  1  repeat  the  remark  made  before,  that 
if  under  a  pretence  of  pleading  a  cause  before  a  Presbyteiy,  one 
should  designedly  and  maliciously  wander  from  the  point  and 
slander  his  opponent,  he  would  be  responsible  for  his  conduct 
in  a  court  of  justice. 

Let  us  apply  these  principles  to  the  case  before  us.  It  was 
the  plaintiff  who  first  affirmed  the  jurisdiction  of  the  Pres- 
byten',  and  cited  the  defendant  to  answer  before  it.  The  de- 
fendant did  not  decline  the  jurisdiction.  What  then  was  he  to 
doi'  He  must  either  confess  that  tiie  words  he  had  spoken  of 
the  plaintiff  were  false,  which  if  he  believed  them  to  be  true 
would  be  a  great  crime,  or  by  acknowledging  that  he  had 
spoken  them,  and  endeavouring  to  justify  them,  render  himself 
liable  to  an  action  in  a  court  of  law,  which  had  been  barred  by 
the  act  of  limitation;  for  this  is  the  consequence,  if  words 
spoken  there  are  actionable.  Would  these  words  have  been 
spoken  at  that  lime,  if  the  plaintiff  had  not  extorted  them!"  And 
after  extorting  them,  shall  he  aj)plv  to  a  temporal  court  for  da- 
mages? If  thi^  law  is  so,  will  not  ecclesiastical  jurisdictions  prove 
traps  for  the  unwary?  May  not  the  occasion  of  the  defendant's 
speaking  be  fairly  and  candidly  said  to  warrant  the  conclusion, 
that  he  spoke  not  through  malice,  but  in  his  own  defence;  or  at 
least,  ought  it  not  to  form  an  exception  from  the  general  rule  by 
which  the  law  i>fip/irs  malice?  The  subject  suggests  a  multitude 
of  reflections;  but  I  have  said  enough  to  explain  the  principles 
on  which  my  opinion  is  founded.  Whether  the  defendant  will 
derive  any  advantage  irom  it  I  know  not;  for  it  is  very  possible 
that  on  a  new  trial  there  mav  hr  sufficient  evidence  to  establish 
he  plaintiff's  action,  independent  of  what  passed  before  the 


LAN 

T'. 


|8g  CASES  IN  Ttli:  SUFREMK  COLRl 

1806  Presbytery.  It  is  very  possible  that  the  verdict  alreody  giten, 
would  have  been  the  same  if  the  court  had  charged  on  this 
point,  according  to  the  defendant's  wishes.  But  be  that  as  it  may, 
he  is   entitled  to   the  benefit  of  his  exception.  I  am  of  opinion 

Birch,  that  the  charge  of  the  Circuit  Court  was  erroneous,  in  the  last 
point  mentioned  in  the  bill  of  exceptions;  and  therefore  the 
judgment  must  be  reversed. 

Brackf.nridge  J.  concurred. 

Judgment  revrrsed. 


Pittsburg,  Faulkner  against  The  Lessee  of  Kddy,  'js'^'a 

Saturday,  3r  '29o 

September  _     ^                                                        !    «:;^"*^^ 

13th.  In  Error.                                i/?^.,*^ 


The  act  of    ^T^HIS  was  a  writ  of  error  to  the  Circuit  Court  of  Allegheny 

3-94   vlh  county,  upon  a  bill  of  exceptions  to  the  opinion  of  Yeatf.s 

proiiibits  any  and  Smith  Justices, 
new  applica- 
tions forcer-       _,,  .  .    •  ^       r  ^l.       1    n       r 

tain  lands  The  questions  ansmg  out  01  the   bill  01  exceptions  were 

(Iocs  not  pre-  argued  by  Foss  for  the  plaintiff  in  error,  and  by  Woods  and 

teration'of    Addison  for  the   defendant   in   error;    and   in   delivering  his 

the  names  of  opinion,  the  Chief  Justice  has  rendered  any  further  statement 
former  ap- 
plicants,        unnecessary. 
The  return 

stir^fvor'is  TiLGHMAN  C.  J.  This  cause  comes  before  the  court  on  a 
merf  Iv  bill  of  exceptions  taken  on  the  trial  in  the  Circuit  Court  of 

prtmnjaae    j^n^a-fienii  county.  The  material  facts  stated  on  the  record  are 

evidence  01  o         J 

the  tnith  of  as  follows:  On  the  25\.\\  April  1793,  a  certain  John  M'-Ket 
rcuinied'^'^  entered  applications  in  the  land  office  for  six  thousand  acres  of 
A  deed  is  land,  in  tracts  of  four  hundred  acres  each,  in  the  names  of 
ble  fn  e\'i- '  sundry  persons;  of  which  the  tract  in  dispute  was  one.  In  the 
dence,  until  month  oi  May  1794,  before  any  warrants  were  taken  out,  he 
shadow  of  ^^^  surveys  made  on  the  applications.  On  the  24th  May  1794, 
tith-  Is  he  sold  his  right  in  these   lands  to  Gideon  Hill  Welb,  and 

Grantor."  ^^^  Richard  Hill  Morris,  who  in  yiine  1 794  paid  the  considera- 
tion money  to  the  state,  and  took  out  warrants,  having  pre- 
viously altered  the  names  of  the  applicants  by  consent  of  the 
said  M'-Kee,  and  with  the  approbation  of  the  officers  of  the 
land  office,  who  have  proved  that  such  alterations  v/ere  cus- 
tomary in  the  office.  The  first  surveys  being  supposed  to  b'- 


OF  PENNSYLVANIA.  189 

illegal,  subsequent  surveys  were  made  under  the  direction  of      1806. 
M'Kee^  and  returned,  and  accepted  in  the  land  office;  and  theTT""/^  ~ 
deputy  surveyor  having  improperly  and  by  mistake  returned         ^,_ 
the  surveys  as  having  been  made  in  3Iaij  1794,  that  mistake     Lessee 
was  corrected  in  the  land  office,  and  the  returns  made  to  corre-         o^ 
spond  with  th-r  surveys  in  March  1795. 

The  plaintiff  below,  having  given  in  evidence  the  articles  of 
agreement  between  M'-Kee^  and  Wells  and  Morris  for  the  pur- 
chase of  the  lands,  proved  by  the  oath  of  the  said  M'-Keey  that 
the  cabin  and  claim  of  a  certain  John  Wolf  were  excluded  by 
the  survey  which  is  mentioned  in  the  said  articles  viz,  the 
siirvev  made  before  the  warrants  were  issued.  And  the  defen- 
dant then  offered  to  read  in  evidence  to  the  jury,  a  deed  from 
the  said  Wnlf  to  John  B.  C.  Lucas  Esquire,  dated  23d  jfunc 
1796,  conveying  the  said  cabin  and  claim  of  Wolf  to  the  said 
y.  B.  C.  Lucas.  The  court  overruled  the  evidence  because 
no  proof  had  been  given  of  any  legal  settlement  made  by  the 
said  Wolf  prior  to  the  survey  of  Wells  and  Morris  in  March 
1 795. 

On  this  bill  of  exceptions,  the  counsel  for  the  plaintiff  in  error 
have  raised  three  points. 

First,  That  the  alterations  of  the  name  of  the  applicant,  and 
of  the  name  of  the  owner  of  the  adjoining  tract,  which  is  refer- 
red to  by  way  of  description  and  boundary,  is  contrary  to  the 
act  of  22d  April  1 794. 

Secondly,  That  the  deed  from  Wolf  to  Lucas  ought  to  have 
been  received  as  evidence. 

Thirdly,  That  no  parol  evidence  ought  to  have  been  received 
of  the  surveys  made  in  1795,  inasmuch  as  the  first  returns  stated 
the  surveys  to  have  been  made  in  May  1794. 

As  to  tin- frst  ( xception,  I  am  of  opinion  that  the  alteration 
made  in  the  application  was  not  contrary  to  the  act  of  22d  April 
1794.*  The  intent  of  this  act  was  to  prevent  the  grant  of  any 

•  The  fir»t  section  of  tliis  law,  enacts,  "  That  (iom  and  after  tlic  passinr 
"  of  this  art,  no  appliralions  shall  be  rcccivtd  iit  the  IuikI  (iHice  for  any 
"  unimproved  land  within  that  part  of  tliiii  Commonu  ealtli,  commonly  called 
*'  the  New  piirdiasi ,  and  tlic  'I'rianpular  tract  upon  Late  L'ne"  The  second 
section  enacts,  that  no  warrant  shill  issue  for  the  aboxe  land,  ejccept  in 
ra\our  of  prr«on»  claiming  hy  settlement  and  improvtment;  and  that  all 
applications  remaininpf  on  the  files  of  the  land  otfice  after  the  iMli  y«n<' 
1794,  <(n  wffich  the  piirchas'-  money  shall  nf)t  have  been  paid,  shall  be 
Toid;  with  a  nr^viiion  in  fnvour  of  certain  persons    3  St.  Latvt  581. 


of 
Eddy. 


190  CASES  IN  THE  SUFKEiME  COURT 

1806.      "lore  lands,  except  in  certain  specified  cases;  it  being  supposed 

7^  that  the  vacant  lands  in  the  state  would  not  be  sufficient  to 

„,         satisfy  more  than  the  amount  for  which  the  state  had  already 

Lessee     engaged  to  make  titles.    The  alteration  in  question  did  not 

increase  that  quantity;  it  evidently  was  for  the  very  .same  land., 

that  was   described   in  the   applications   entered   by  M^'Kee. 

Therefore  it  does  not  violate  the  spirit  of  the  law. 

In  arguing  the  second  point,  the  counsel  for  the  plaintiff  in 
error  has  not  contended  for  the  broad  principle  laid  down  in 
JJ^DilPs  lessee  v.  M'-Dill.,  (a^  that  any  deed  may  be  read  in  evi- 
dence, whether  pertinent  or  not  to  the  matter  in  issue.  In  this 
he  was  certainly  right.  It  has  been  generally  conceived  that  in 
that  case  the  law  was  carried  too  far.  But  he  relied  on  an  agree- 
ment between  M*- Kee  and  Wolf^  that  the  cabin  of  Wolf  should 
not  be  taken  from  him.  The  record  states  not  one  word  of  any 
such  agreement;  and  the  case  stands  nakedly  as  of  one  who,  hav- 
ing no  kind  of  title,  makes  a  deed  conveying  his  right  to  another. 
It  has  been  the  practice  at  Nisi  Prius  to  reject  the  deed  in  such 
cases;  and  I  see  no  reason  why  it  should  be  altered.  It  makes 
no  difference  to  the  party  offering  the  deed,  whether  it  is  reject- 
ed at  once,  or  whether  the  court  suffer  him  to  read  it,  and  then 
tell  the  jury  that  it  passes  nothing.  But  it  expedites  the  trial  of 
causes  to  reject  the  deed  in  the  first  instance. 

As  to  the  f/izrJ  point,  it  appears  to  me  extremely  plain  that  it 
was  proper  to  receive  evidence  to  explain  the  whole  transaction. 
The  return  of  an  officer  is  prima  facie  evidence,  but  not  conclu- 
sive, of  the  truth  of  the  matter  returned.  It  would  be  a  reflection 
on  courts  of  justice,  if  in  a  case  like  the  present,  where  the  party 
had  in  truth  procured  a  legal  survey  to  be  made,  he  should  be 
estopped  from  shewing  it,  merely  because  there  had  formerly 
been  an  illegal  survey,  and  the  oOicer  had  made  a  mistake  in  his 
return.  And  this  too,  when  the  Commonwealth,  the  party  most 
interested,  had  by  its  officers  permitted  the  truth  to  be  explained. 

Upon  the  whole  I  am  of  opinion  that  the  judgment  of  the  Cir- 
cuit Court  be  affirmed. 

Brackenridoe  J.  concurred  in   the  opinion  of  the  Chier 
{a)  1  Ball.  64.  1  Dali  69.  S.  P. 


OF  PENNSYLVANIA.  191 

Justice  with  one  remark,  that  if  there  had  been  any  proof  of  a      1806. 

scint/f/a  of  ihle'm  Wolf^  however  small,  he  should  have  been  oiTrT^,  ^TZZT 

opmion  that  the  deed  ought  to  have  been  received  as  evidence.  v. 

Lessee 

Judgment  affirmed.  ^^ 

Eddv. 


lb  191 
93r2« 


s  i2»  OzEAS  aica'mst  ionK^o^  administrator  of  Foulke.     Wednesday, 

'}    *^-l  ^  December 

^  I  "'HIS  was  an  action  for  money  had  and  received,  tried  be-  One  partner 

^  fore  the  Chief  Justice,  at  Nisi  Prius  in  June  1 8C  i.  The  facts  *^^."""*  ™'^'"'- 
•  I  1  ,         1    •      -rr        1    /-      ;/     1      1  1  tain  assump- 

in  evidence  \verc,  that  the  plaintiff  and /o?«>tc  had  been  con- sit  ag-ainst 

cerned  in  several  adventures  to  New-Orleans^  upon  the  accounts  ^.'"^  other, 

r     u*   1-     ITT  ■  lor  tlie  pro- 

ot  which,  different  sums  appeared  to  be  due  to  the  plaintiftlrom  ceeds  of  a 

Foulke^  who  had  received  the  proceeds;  and  for  the  recovery  of  P-J''^"^''^'"P 

1  ...  „  adventure, 

these  sums  with  interest  the  action  was  brought.  Que  of  the  wit-  unless  they 

nesses  swore  that  two  or  three  vears  before  Foulke^s  death,  the  \^'''^  settled 

,    .     .—  ,  "     .     .  their ac- 

plaintift  demanded  a  settlement  of  his  accounts,  which  Foulke  cMmts  and 

promised  to  make  in  a  short  time;  but  no  account  stated  and f ^'"j"^'^^* 
settled  by  the  parties  was  produced  upon  the  trial,  nor  was  there 
any  evidence  that  such  a  settlement  had  ever  taken  place.  Upon 
these  facts,  Uoplc'uison  for  the  defendant  requested  the  court  to 
reserve  the  point,  whether  the  plaintiff,  being  a  partner  of 
Foulke  and  et^ually  concerned  in  the  adventures,  could  recover 
in  the  present  form  of  action.  The  point  was  accordingly  re- 
served, and  the  jury  found  for  tiic  plaintiff. 

S.  Lv'jij  for  the  plaintill'.  The  objection  to  the  form  of  action, 
being  designed  to  turn  the  plaintiff  round  to  a  very  tedious 
suit,  is  entitled  to  no  favour.  That  a  settlement  and  the  striking 
of  a  balance  are  essential  to  sM])port  this  action,  seems  far  from 
being  the  case,  according  to  the  decision  £.v/M/7r'A^(j/6ci', referred 
to  in  Wats,  on  Part.  221.  where  it  was  held  that  if  a  partnership 
has  been  determined,  and  the  solvent  partner  has  paid  the 
debts,  he  may  be,  without  any  settlement,  the  petitioning  credi- 
tor for  a  commission  against  his  partner;  and  this  must  proceed 
tipon  the  giound  of  there  being  an  ascertained  debt  due  to  him. 
SiiU  further,  where  an  account  has  been  a  long  time  in  the 


192  CASES  IN  THE  SUPREME  COURT 

1806.     hands  of  the  debtor  without  objection,  this  is  as  conclusive- 
77  against  him  as  a  stated  account;  Tickcl  v.  Short;  (a)  and  it  will 

■y.  be  presumed,  to  support  the  action,  that  the  balance  was  esta- 
JoHNSON.  blished  before  the  jury  by  some  evidence  of  this  kind.  But  what 
action  is  to  be  adopted?  Account  refidcr  is  almost  obsolete,  1  Bac. 
Abr.  31.36.37.;  and  is  attended  with  vexatious  delays.  We  have 
no  courts  of  equity,  and  therefore  cannot  resort  to  a  bill.  The 
action  for  money  had  and  received  is  therefore  the  best  form 
of  action,  because  it  is  the  most  like  a  bill  in  equity,  Jestoyis  v. 
Brooke;  (b)  and  has  been  allowed  to  perform  that  office  in  the 
state  of  Pe7insi/hania.  D^Utricht  v.  Mclchor.  (c)  The  legis- 
lature of  this  state  have  moreover  protected  us  by  directing 
that  no  suit  shall  be  set  aside  for  an  informality  of  this  kind. 
7  St.  Laws  563.  Act  of  March  21st  1806. 

Hopkmson  for  the  defendant.  This  is  a  case  of  special  part- 
nership, in  which  no  account  was  settled;  and  nothing  is  clear- 
er than  that  in  such  a  case  money  had  and  received  does  not 
lie.  It  is  not  an  objection  to  form,  but  to  substance.  One  part- 
ner has  nothing  but  a  moiety  of  what  remains  after  the  debts  of 
the  concern  are  paid,  and  the  accounts  arc  settled.  If  this  ac- 
tion lies,  under  the  circumstances  in  evidence,  it  must  either  be 
made  to  effect  this  settlement  in  the  course  of  the  proceeding, 
which  is  impossible,  or  it  will  work  injustice.  But  it  does  not 
rest  upon  principle;  it  has  been  repeatedly  decided  that  unless 
there  is  a  settlement  and  a  balance  struck  between  the  parties, 
assumpsit  does  not  lie.  Wats,  on  Part.  221.  226.  It  is  laid  down 
in  terms  by  Judge  Buller  in  Smith  v.  Barrow  (d')  that  "  one 
"  partner  cannot  recover  a  sum  of  money  received  by  the  other, 
''  unless,  on  a  balance  struck,  the  sum  be  found  due  to  him 
"  alone:"  and  it  does  not  seem  clear  that  even  an  express  pro- 
mise to  pay  the  balance  is  not  essential.  Moravia  v.  Levy  (c), 
Casey V.  Brush  {f)^La  Malairev.  Caze^  Ct.  Ct.  U.  S.  April  1 806. 

TiLGHMAN  C.  J.  delivered  the  opinion  of  the  court. 

This  is  an  action  on  the  case  in  which  the  plaintiff  declared 
for  money  had  and  received  to  his  use  by  Adam  Foulke  deceased- 

(a)  2  Vtz.  239.  (J)  ^  Ji.ksf  E.  478. 

(A)  Conup.  795.  (e)  2  JD.  iS"  E.  483.  Note- 

(c)  1  Dall.  423  (  f)  2  Cainte,  296. 


OF  PENNSYLVANIA.  ..        193 

It  was  proved  on  the  trial,  that  the  plaintiff  and  Adam  Foulke      1806. 
were  engaged  as  joint  partners  in  an  adventure  to  Nezv-Orleans.  "q^e/vs 
Thejur}-  were  of  opinion,  that  on  striking  the  balance  of  the         i,, 
partnership  accounts,  the  sum  of  three  hundred  and  twenty  dol-  Johnson. 
lars  was  due  to  the  plaintiff,  and  found  a  verdict  accordingly. 
There  was  no  proof  that  the  partners  had  ever  settled  their 
accounts;  and  at  the  request  of  the  defendant's  counsel,  the 
point  was  reserved  for  the  consideration  of  this  court,  whether 
under  these  circumstances  the  plaintiff  could  support  this  action. 

It  was  my  wish  to  support  the  action  if  possible,  because  the 
jury  have  decided  on  the  merits  of  the  case.  But  upon  consi- 
dering the  nature  of  the  action,  and  the  authorities  which  have 
been  cited  on  both  sides,  I  am  of  opinion  that  the  plaintiff  cannot 
recover.  The  money  received  by  one  partner  during  the  part- 
nership, is  not  received  for  the  use  of  either  of  the  partners, 
but  of  both  of  them.  All  that  either  partner  is  entitled  to,  is  a 
moiety  of  what  remains  after  all  the  partnership  debts  are  paid. 

The  proper  remedy  for  one  partner  against  the  other,  is  by 
an  action  of  account  render.  No  case  has  been  cited  by  the 
plaintiff's  counsel  to  shew  that  an  action  like  the  present  can  be 
maintained,  unless  the  partners  have  settled  their  account,  and 
struck  the  balance.  It  is  of  importance  that  the  forms  of  action 
should  not  be  confounded.  They  are  founded  in  good  sense, 
and  convenience.  The  defendant  has  an  interest  in  insisting 
that  the  proper  form  of  action  should  be  preserved,  of  which 
this  court  has  no  right  to  deprive  him.  It  is  most  convenient 
that  the  partnership  accounts  should  be  settled  before  auditors. 
It  would  be  extremely  difficult,  and  in  many  cases  almost  im- 
possible to  settle  them  by  a  jury.  I  am  therefore  yf  opinion  that 
the  plaintiff  cannot  maintain  his  action. 

Vol.  I.  2  B 


194 


CASES  IN  THE  SUPREME  COURT 


1806. 


Fox  administrator  of  Hockley  a  gainst  Wil  cocks 

and  others. 

T^HIS  was  an  appeal  from  the  Orphan's  Court  of  the  city  antt 


ney  of  the 
intestate, 
or  has  used 
it  himself; 
and  it  Hes 


has  been 
done  with 
the  money 


Saivrday, 
Dfirt-mber 
20tli. 

An  adminis- 
trator is 
cliarpcable 
wit  '.interest, 
who.  the  has    -*-    county  of  Philadelphia.    Mr.  Fo.x  the  appellant,  who  was 

of  neKle'ct'^in  ^^*'"g  administrator  of  W.  B.  Hockley ^  settled  his  account  in 
not  iMitting  the  register's  office,  from  which  it  was  passed  to  the  Orphan's 
Court  for  confirmation.  With  consent  of  the  pa:rtics,  it  was  re- 
ferred by  that  court  to  auditors  for  examination  and  statement^ 
and  the  appellees,  who  were  next  of  khi  to  the  intestate,  gave 
notice  to  the  administrator,  that  he  would  be  reqtiired  to  pro- 
Bhew  what  duce  to  the  auditors  the  bank  book  of  his  administration,  and  to 
state  on  affirmation  whether  he  had  used  for  his  own  purposes 
any  and  what  monies  of  the  intestate.  At  the  ineeting  of  the 

Bir  he  is  not  auditors  the  dispute  turned"  upon  two  points,  the  amount  of 
liable  to  in-  •  n  i  i  i     •    •  •       i  •         «       r 

terest  until    compensation  allowed  to  the  admmistrator  m  the  register  s  or- 

after  twelve  fice,  which  the  next  of  kin  said  was  too  great,  and  a  credit 
months  from     ,.,  i-iii  r\  •     c      •  i 

the  death      which  was  claimed  by  the  next  ot  kin  tor  interest  upon  sums  they 

of  the  in-  alleged  to  have  been  a  considerable  time  in  the  administrator's 
hands;  but  Mr. i^o:v  refused  to  produce  his  bank  book,ortomakc 
the  required  statement  upon  affirmation.  The  auditors  allowed 
the  compensation  as  it  stood;  and  although  they  refused  the 
credit  for  interest  as  it  was  claimed,  they  nevertheless  charg- 
ed Mr.  Fox  £  150  as  a  reasonable  compensation  for  any  use 
he  could  or  did  make  of  the  money  remaining  in  his  hands  dur- 
ing his  administration;  reporting  at  the  same  time,  that  it  did 
not  appear  he  was  ever  unprepared  to  pay  any  money  legally 
demanded  of  him.  To  this  report  both  parties  filed  excep- 
tions; the  appellant,  that  he  had  been  charged  with  any  sum  in 
the  shape  of  interest;  the  appellees,  that  he  had  not  been  charg- 
ed enough;  but  by  agreement  the  report  was  confirmed,  and  an 
appeal  made  to  this  court,  to  obtain  a  decision  upon  the  princi- 
ple that  was  to  govern  the  case. 


lb  I'M 
2b  ;)()l) 

4wii(; 

14sr241 
10sr4.il 


s 

a.c) 

2 

'v4or> 

2w4(J«; 

iwsGdS 

6 

91 

71 

123 

tt 

Rawle  for  the  appellant.  The  charge  oi  £\50  is  wrong  upon 
the  face  of  the  report;  for  the  auditors  have  reported  that  the 
administrator  was  never  unprepared  to  pay  money  upon  de- 
jnand;  and  from  their  silence  it  is  clear  there  was  no  proof  ot 


OF  PENNSYLVANIA.  195 

his  having  used  it.  Considering  him  then  as  a  trustee  for  the      1806. 

next  of  kin,  it  is  settled  hivv  in  Petinsylvania,  that,  under  the  case — ' 

put,  he  was  not  liable  for  a  cent  of  interest;  Knight  v.  Reese;  (a)  ^,. 
and  as  an  administrator  under  the  act  of  1713,  he  was  chargeable  Wilcock:' 
with  interest  only  on  the  surplus  of  the  decedent's  estate  remain- 
ing in  his  hands, "  when  the  accounts  of  his  administration  were 
"  or  ought  to  have  been  settled  and  adjusted."  1  State  Laws  101. 
sec.  6.  There  is  no  allegation  of  delay  in  the  final  settlement  of 
his  account;  and  although  an  administrator  may  apply  to  the 
Orphan's  Court  for  their  leave  and  direction  to  put  out  any 
Jnoney  belonging  to  minors,  yet  gross  negligence  must  be  shewn, 
to  charge  him  with  interest  for  the  omission. 

C.  y.  Ingersoll  for  the  appellees.  The  precise  question  in 
this  case  is,  whether  an  administrator  is  not  liable  to  pay  inte- 
rest after  refusing  to  produce  the  bank  book  of  his  administra- 
tion monies,  or  to  state  on  oath  whether  he  has  applied  them  to 
his  own  purposes.  The  Orphan's  Couit  proceeds  in  many  re- 
spects like  a  court  of  equity.  It  has  a  variety  of  its  forms  and 
powers;  and  may  enforce  obedience  to  its  orders  and  sentences 
by  sequestration  and  imprisonment.  It  is  indeed  no  where  spe- 
cially invested  with  authority  to  appoint  auditors;  but  as  they 
arc  necessary  to  give  effect  to  the  jurisdiction  of  the  court,  their 
appointment  must  be  supported;  and  they  must  judicially  be 
considered  as  representing  the  body  from  which  they  emanate. 
As  therefore,  in  contemplation  of  law,  it  is  the  court  that  exa- 
mines and  states  the  account,  and  as  its  authority  to  order  the 
production  of  books  and  a  statement  upon  oath  cannot  be  ques- 
tioned, the  same  was  within  the  power  of  the  auditors,  who  are' 
instruments  and  representatives  of  the  court.  Upon  a  refusal  to 
produce  the  books  and  to  make  the  statement  upon  oath,  every 
presumption  arises  to  support  our  claim  to  interest;  as,  that  the 
administrator  used  the  monev  for  himself,  or  suffered  it  im- 
providently  to  lie  in  his  hands  unemployed.  Mmijestce  conjes- 
sionis  est  nolle  jurare. 

In  either  of  these  cases  he  was  liable  to  pay  interest  by  the 
law  of  Pennsi/lvaniay  and  according  to  the  doctrines  of  every 
system  of  law  whose  foundation  is  reason.   Hv  the  4th  scctiop. 

(n^?  null  IP" 


196  CASES  IN  THE  SUPREME  COURT 

1806.      of  the  act  of  1713,  an  administrator  mav  put  out  the  money  of 

i^  minors  to  interest,  upon  such  sc'curit^•  ;is  thf  Orphan's  Court  shall 

rox  ,       '    ■  ... 

It.         approve;  and  \i  no  person  van  he  found  whu  is  wilhng  to  take  thp 

WiLcocKS  inonev,  then  he  shall  be  responsible  for  the  principal  enhj.  But 
the  necessary  implication  of  this  section  is,  that  if  he  omits  to 
make  application  to  the  court,  or  cannot  shew  an  exertion  on 
his  part  to  find  a  person  willing  to  take  the  money,  he  shall  be 
responsible  for  the  interest  as  well  as  the  principal.  The  sixth 
section  is  still  stronger;  for  it  expressly  charges  him  with  inte- 
rest upon  the  surplus  in  his  hands  after  his  accounts  are  or  ought 
to  be  settled;  which  by  the  existing  law  should  be  done  within 
a  year  from  the  date  of  his  administration.  All  our  acts  in  pari 
?nateria  shew  the  design  of  the  legislature  to  charge  adminis- 
trators with  interest,  if  they  do  not  put  the  money  out;  4  St. 
Laws  151;  a  fortiori  where  they  use  it  themselves. 

The  English  doctrine  applies  with  peculiar  force;  for  in 
England  an  executor  or  administrator  is  allowed  nothing  for 
his  care  and  trouble;  and  there  is  therefore  one  inducement 
wanting  in  that  country  to  charge  him  with  interest,  which 
exists  here.  Now  the  authorities  from  the  time  of  Charles  the 
second  to  the  present  dav,  with  a  few  deviations,  concur  in 
settling  the  rule,  that  administrators  shall  pay  interest  for  money 
which  they  either  employ  for  themselves,  or  are  negligent  in 
not  employing  at  all.  The  liability  to  pay  interest  in  the  one 
case,  results  from  its  being  a  breach  of  duty  in  the  administrator 
to  neglect  making  it;  in  the  other,  it  is  a  dictate  of  the  plain- 
est 'quity,  that  the  profits  of  a  capital,  or  at  least  something  in 
lieu  of  them,  should  be  paid  to  the  proprietor  of  the  fund;  and 
to  compel  from  the  administrator  a  disclosure  of  the  facts,  it 
has  become  a  standing  rule  of  presumption  in  Chancery,  that 
the  money  has  been  used  by  him,  unless  he  states,  under  oath, 
what  has  been  the  particular  disposition  made  of  it.  Hilliardv. 
Gorge  (a),  Ratcliffv.  Graves  (6),  Landen  v.  Green  (c).  Attor- 
ney genera/  v.  Corporation  ofStafford{d^^  Lee  v.  Lee  (ej.  Bird 
v.  Lockey  (f)y  lVilkin.<i  v.  Hunt  (^),  Newton  v.  Benntt  f/z), 
Treves  v.  Townsend  (?).    Littlehales  v.  Gascoigne^  (Ji)  fixes  the 

(a)  2  Chan.  Cat.  235.  (/  )  2  Vern.  744. 

(b)  1  Vern.  VJ6.  (^)  2  Atk.  1.51. 

(c)  Barnard.  Cli.  Hep.  389.  (/»)  1  Bro.  Ch.  Rep.  359. 

(d)  Id.  36.  (i)  Id.  384. 

(r)  2  Vern.  .598.  (t)  3  Bro.  Ch.  Rep.  74 


OF  PENNSYLVANIA.  197 

principle  on  abroad  and  liberal  ground.  "  An  executor's  pay-      1806. 
*'  ing  or  not  paving  interest,"  said  Lord  T/iurlow,  "  depends       p 
"  on  its  being  necessary  for  him  to  keep  the  money  to  answer         i,, 
*' the  exigencies  of  the  testator's  affairs,  or  not;  but  where  he  Wilcocks 
"  holds  the  money  longer  than  is  necessary,  he  must  answer 
"  interest."  And  in  Franklin  v.  Frith^  {ci)  the  point  of  interest 
was  abandoned  bv  the  counsel  for  the   executors.     Piety  v. 
Stace^  fb)  and  Pocoik  v.  Redding-ton,  (c)  are  both  to  the  same 
purpose,  and  in  point. 

The  civil  law  adopts  the  same  principle.  Denizart  tit.  Inte- 
ret.  11.  51.  53,  54.  tit.  Tuteur.  61,  2,  3.  6.  9.  2  Pothier  de 
Bienf.  36.  48,  49. 

Lnvis  in  reply.  The  question  is  properly  stated  by  Mr.  In- 
gersoll-y  it  is  whether  the  mere  refusal  to  produce  bank  books, 
and  to  make  a  statement  upon  oath,  should  be  admitted  as  evi- 
dence that  the  administrator  used  thi-  money,  or  kept  it  by  him 
too  long.  Now  it  is  clear  the  presumption  from  this  refusal 
must  be  at  an  end,  if  there  was  no  authority  in  the  auditors  to 
demand  a  compliance;  and  this  of  itself  hardly  admits  an  argu- 
ment. Auditors  are  not  known  to  the  law;  their  appointment  is 
good  only  by  consent  of  parties;  and  they  cannot  proceed  a  step, 
if  the  administrator  chooses  to  recede.  The  Orphan's  Court 
itself  has  no  power  to  tender  him  the  oatli,  or  to  compel  his  ap- 
pearance- before  auditors;  such  authority  is  no  where  found  in 
the  law,  and  there  has  never  been  an  instance  of  it  in  practice. 

The  cases  from  the  Eng-lish  books  cannot  of  course  apply, 
until  more  matter  is  before  the  court;  and  whenever  there  is 
occasion  to  apply  them,  it  will  be  found  that  those  which  bear 
the  most  severely  upon  administrators,  charge  them  with  in- 
terest only  where  they  have  used  the  money,  or  kept  it  by  th^m 
a  long-  time;  that  is,  in  case  of  fraud  or  gross  negligence. 

TiLGHMAN  C.  J.  delivered  the  opinion  of  the  court. 

It  appears  that  S.  M.  Fox,  the  acting  administrator  of  W.  B. 
HockUij,  settled  his  administration  accounts  with  the  register, 
which  were  transmitted,  as  usual,  to  the  Orphan's  Court,  by 
whom,  with  the  consent  of  the  said  administrator  and  next 

(a)  Bro.  Ch.  Kep.  433.  {c^  5  Vrz.  W.  794. 

ilA  4  rrz.;>.  620 


198  CASKS  IN  THE  SUPREME  COUT^T 

180G.      of  kin,  the  accounts  were  referred  to  auditors.    On  appearance 

Y~       before  the  auditors,  there  was  no  dispute  concerning  unv  item 

-J,.         charged  in  the  administration  accounts:  but  the  next  of  kin  ob- 

Wii.cocKsjectcd  to  the  commissions  allowed  the  administrator,  and  they 

claimed  interest  for  sums  of  money,  which  they  alleged  had 

remained  a  considerable  time  in  his  hands.  The  auditors  were 

of  opinion  that  the  commissions  allowed  the  administrator  were 

reasonable;  and  that  the  administrator  should  be  charged  with 

150/.  as  a  just  and  reasonable  compensation  for  any  use  which 

he  coiilfi  or  did  make  of  the  money  remaining  in  his  hands, 

during  the  course  of  his  administration;  and  they  declared  at 

the  same  time,  that  it  did  not  appear  that  the  administrator 

was  ever  unprepared  to  pay  any  money  legally  demanded  of 

him. 

The  next  of  kin  and  the  administrator  were  both  dissatisfied 
with  this  report.  Both  filed  exceptions;  and  it  was  agreed  that 
the  report  of  the  auditors  should  be  confirmed  by  the  Orphan's 
Court  without  prejudice  to  either  party,  in  order  to  afford  a 
'^-round  for  an  appeal  to  this  court:  on  which  appeal  every  objec- 
tion was  to  be  heard,  that  could,  under  the  exceptions  filed,  have 
been  made  to  the  report  of  the  auditors  in  the  Orphan's  Court. 

The  next  of  kin  excepted,  that  the  administrator  had  large 
sums  in  his  hands  for  a  long  time;  that  they  called  upon  him  to 
produce  his  bank  book  before  the  auditors,  and  to  answer  on 
oath,  whether  he  had  made  use  of  any,  and  how  much  money 
of  the  deceased,  and  for  what  length  of  time;  both  which  he  re- 
fused to  do:  that  in  consequence  of  this,  they  were  entitled  to 
interest  on  the  sums  which  so  lay  in  the  hands  of  the  adminis- 
trator; but  that  the  auditors  refused  to  allow  interest. 

The  administrator  excepted,  that  the  auditors  charged  him 
with  150/.  interest,  although  they  state,  that  it  did  not  appear, 
that  he  was  ever  legally  called  on  for  money  on  account  of  the 
estate,  which  he  was  not  ready  to  pay. 

What  I  consider  as  the  principal  point  in  this  ease,  is,  whether 
the  administrator  is  liable  to  interest,  for  the  sums  of  money, 
which  from  time  to  time  remained  in  his  hands,  before  the  set- 
tlement of  his  accounts. 

By  the  actof  1713,acc'.4.  («)  it  is  enacted  that  "executors,  ad- 

(a)  1  St.  La^c  98-- 


OF  PENNSYLVANIA.  199 

*'  ministrators,  and  guardians,  may,by  leave  and  direction  of  the      1806. 
"  Orphan's  Court,  put  out  their  minor's  money  to  interest:  but       ^ox 
"  if  no  person  can  be  found  to  take  it,  who  ■will  give  good  sccu-         v. 
"  rity,  thev  shall  only  be  responsible  for  the  principal."  By  the  ^^'  ilgocks 
same  law  sec.  6.  "  they  shall  onl\-  be  liable  to  pay  interest  on  the 
"  surplusage  of  the  estate  remaining  in  their  hands,  when  the 
"  accounts  of  their  administration  are,  or  ought  to  be,  settled  be- 
''  fore  the  Orphan's  Court  or  register." 

It  is  therefore  the  duty  of  executors,  administrators,  and 
guardians,  not  to  let  monev  remain  unemployed  in  their  hands: 
and  by  fair  implication  from  the  words  of  this  act  of  Assembly, 
if  they  do  through  negligence  suflVr  it  to  remain  unemployed, 
they  are  responsible  for  interest:  much  more  so  if  they  use  the 
money  for  t/wir  otvn  purposes.  As  the  law  expressly  declares 
that  they  are  only  liable  to  pay  interest  on  the  balance  in  their 
hands,  when  the  administration  accounts  are  or  ou^ht  to  be  set- 
tled, it  should  seem  that  they  are  not  liable  to  interest  during 
twelve  months  from  the  death  of  the  Intestate,  since  that  period 
is  reckoned  reasonable  for  the  settlement  of  those  accounts. 

I'o  la\-  down  rules,  by  which  it  may  be  ascertained  in  every 
case,  whether  administrators  shall  pay  interest  on  balances  in 
their  hands,  is  impossible;  because  every  case  depends  on  its 
own  circumstances.  But  I  think  it  may  be  established  as  a  prin- 
ciple,  that  interest  is  payal)le,  where  the  administrator  has  been 
guilty  of  neglect  in  not  putting  out  money,  or  where  he  has 
made  use  of  it  himself.  («)  Both  the  act  of  Assembly  and  the  prin- 
ciples of  universal  reason  concur  in  this;  and  it  is  agreeable  to 
the  authorities  cited  from  the  law  of  England,  and  the  civil  law. 
Still  it  remains  to  I)e  decided  by  the  facts  in  each  case,  whether 
the  principle  is  applicable.  As  to  the  auditors,  no  law  has  been 
shewn,  which  satisfies  me,  that  they  have  power  to  call  for  the 
oath  of  the  administrator  as  to  the  use  he  has  made  of  the  mo- 
ney, or  to  demand  the  production  of  his  books.  At  the  same 
time  I  cannot  help  remarking,  that  the  administrator  sliould 
reflect  well  before  he  declines  tlie  offer  of  his  adversary,  to  ap- 
peal to  his  own  books:  because  it  lies  on  him,  to  shew  what  has 
been  done  with  the  money;  and  unless  he  does  shew  it,  in  :i 
satisfactory  manner,  he  leaves  himself  open  to  the  conclusion 
of  having  used  it  for  his  own  purposes. 

I'l)  Vide  Granberrj't  Exer-ito'  v  Cranberry,  1  n'rf.j//  24<^. 


200  CASES  IN  THE  SUPREME  COURT 

180G.  The  Court  having  given  their  opinion  on  the  point  of  law 

'      y  submitted  to  them  by  the  exceptions,  it  remains  for  the  par- 

1,,         ties  to  determine,  whether  they  will  acquiesce  in  the  report  ol 
Wii.cocKsthe  auditors,  (men  certainly  of  excellent  character  and  experi- 
ence in  business)  or  proceed  to  a  further  investigation  of  the 
accounts. 

Yeates  J.  and  Smith  J.  were  not  present  at  the  argument, 
nor  at  the  delivery  of  the  court's  opinion. 


CASES 


IN  THE 


SUPREME  COURT 


OF 


PENNSYLVANIA. 


jb  I'he  Commonwealth  against  Boyer. 

^^«/  _  1807. 

THE   defendant  was  tried  before   Tilghman    C.   T.  and-  - — 

Smith  J.  at  a  court  of  Oyer  and  Terminer,  holden  by  the  Febniary 
Judges  of  the  Supreme  Court  in  the  county  oi  Philadelphia,  in-Oih. 
Jannarij  1807,  under  the  following  indictment:  "The  R-rand  ^" '"^^'''^" 

.•no  rncnt  for 

"  mquest,  &c.  &c.  do  present  that  Nicholas  Boyer,  kite  of  the  siealinj^  two 

"  countv  aforesaid,  yeoman,  on  the  first  day  of  Maii  in  the  vear^^"  dollar 
-  •  •'  •  -  notes  of  the 

ol  our  Lord  1806,  with  force  and  arms  at  the  county  aforesaid  Freshknt, 

''in  a  certain  lane  near  the  highway,  in  and  upon  one  John''''^"'"''"'"/ 

.  r  co7t\pany  of 

Dtiffcij,   in  the  peace  of  Cod  and  the  commonwealth  then  the  bant  Uni- 

"  and  there  being,  feloniously  did  make  an  assault,  and  him  the  '^'[•^'''";J^^c- 
-";      _  •'  'is  na<l.    I  hey 

"  said  John  DuJ/cy  in  bodily  fear  and  danger  ol"  his  life  in  the  should  be 
•'  lane  aforesaid,  then  and  there  feloniously  did  put,  and  txvo  tcn^^^''^  '■"  ^^ 

'  .  promissory 

''■Hollar  notes  of  the  President  directors  and  comfnuuj  of  the  rtf^^es  for  thti 

^'  ban/:  of  the  United  States;  one  ten  dollar  note  of  the  President?,^"'''^  °^ 

-'  directors  and  compamj  of  the  hank  of  North  America;  one  five  S^uWhcihtT 

''  dollar  7iotc  of  the  President  directors  and  combanu  of  the  Inrnk  !'"  'T-'^k'  a 
•J  I        J    J  mclit  IS  ban 

"  of  Pennsylvania,  and  one  three  dollar  note  of  the  Philadclphiaf<>r  Inying- 
''  bank,  being  altogether  of  the  value  of  thirty  eight  dollars,  o/I;f^f,"'^^j;'^^ 
"  the  goods  and  chattels  of  the  said  John  Du/fl-y,  from  the  per-i"rf  chattels 
"  son  and  against  the  will  of  the  said  fohn  Duffey  in  the  lane  "f,^^',!;  P'^"'"' 
"  aforesaid,  then  and  there  feloniously  and  violently  did  steal, 
•'  take,  and  carry  awav,  contrary  to  the  form  of  the  actof  Asscm- 
VoL.  I.  '  '  '2C 


202  CASES  IN  THE  SUPREME  COURT 

1 807.      "  bly  in  such  case  made  and  provided,  and  against  the  peace  and 
Common-  "  <^lJgiiiO'  ^^  ^^^'  commonwealth   of  Povist/lvania.^^    He  was 
wealth     acquitted  of  the  robbcrij^  and  found  guilty  of  the  larceny;  and 
■^'-         aniotion  was  made  in  arrest  of  judgment  upon  two  grounds: 
o^EU.  j^  Because  the  indictment  did  not  pursue  the  act  of  Assem- 

bly in  describing  the  property  alleged  to  have  been  stolen;  and 
the  property  described  was  not  the  subject  of  larceny  at  com- 
mon law.  » 

2.  Because  the  indictment  laid  the  property  alleged  to  have 
been  stolen,  to  be  the  g-oods  and  chattels  of  John  Duffey. 

It  was  argued  on  the  16th  and  18th  of  February^  by  Mere- 
dith and  S.  Levif  for  the  defendant,  and  by  the  Attorney  general 
for  the  commonwealth. 

The  act  of  Assembly  upon  which  the  indictment  was  founded, 
was  passed  on  the  15th  April  1790,  and  the  5th  section  is  as  fol- 
lows: "  Robbery  or  larceny  of  obligations  or  bonds,  bills  obli- 
"  gator)-,  bills  of  exchange,  ^rommore/  notes  for  the  payment  of 
"  money ^  lottery  tickets,  paper  bills  of  credit,  certificates  grant- 
"  ed  by  or  under  the  authority  of  this  commonwealth,  or  of  all 
'•''  or  any  of  the  United  States  of  America^  shall  be  punished  in 
*'  the  same  manner  as  robbery  or  larceny  of  any  goods  or  chat- 
"  tels."  2  St.  Laws.  804. 

For  the  defendant  it  was  contended,  that  the  property  de- 
scribed in  the  indictment  did  not  appear  to  be  such  whereof  a 
Jarceny  could  be  committed ;  for  it  was  not  stated  that  they  were 
promissory  notes  for  the  payment  of  money.  A  note  of  the  Pre- 
sident directors  and  company  of  the  bank  of  the  United  States^ 
is  not  necessarily  such  a  promissory  note;  because  it  may  in  fact 
contain  no  promise  or  engagement  whatever,  and  in  addition 
to  this,  may  have  already  been  paid  and  cancelled.  Where  the 
words  of  a  statute  are  descriptive  of  the  Jiature  of  the  offence, 
there  it  is  necessary  to  specify  in  the  particular  words  of  such 
statute;  Rex  v.  Pemberton;  (a)  and  the  court  will  not,  bv  a 
forced  intendment,  support  an  indictmt.-nt  which  is  defective  in 
the  description  of  the  crime,  since  they  are  restrained  by  the 
same  principle  which  limits  the  operation  of  penal  statutes  to 

(fl)  2  Burr.  1037. 


OF  PENNSYLVANIA.  205 

cases  within  their  letter.  The  notes  are  also  laid  in  this  indict-      1807. 
ment  to  be  of  the  bank  of  the  United  States  &c.   The  effect  *^*  T^n^mon^ 
this  language  in  vulgar  use  is  not  a  question  for  the  court,  but     wealth 
on  the  contrary  its  legal  import;  and  this  evidently  is,  that  the         v. 
notes  were  the  property  of  the  bank;  which  leaves  it  still  more    Boyer. 
doubtful  whether  they  were  promissory  notes  for  the  payment 
of  money.   Craveri's  case,  2  East  Cr.  Laxv  601.  is  in  point.   He 
was  indicted  upon  the  stat.  2  Geo.  2.  c,  25.  for  stealing  a  certain 
note  commonlij  called  a  bank  note;  and  all  the  Judges  on  re- 
ference to  them,  held  the  indictment  ill,  as  in  describing  the 
property  stolen,  it  did  not  follow  any  of  the  descriptions  of  pro- 
perty in  the  statute. 

The  indictment  states  the  notes  to  be  of  the  goods  and  chat- 
tels of  Duffel).  In  the  case  of  the  King  v.  Sadi  and  Morris^  (a) 
it  was  determined  by  all  the  judges  to  be  improper  to  lay  bank 
notes  to  be  chattels^  though  they  were  also  of  opinion  that  that 
word  might  be  rejected  as  surplusage,  if  the  indictment  were  in 
other  respects  sufficient.  In  that  case  they  were  laid  to  be  the 
*'  property  and  chattels"  of  S.  S.;  but  here  if  "  goods  and  chat- 
"  tels"  are  rejected,  the  indictment  is  gone.  There  is  no  acces- 
sary after  the  fact  for  receiving  money;  because  money  is  not 
goods  and  chattels  within  the  acts  which  make  it  felon}'  to  re- 
ceive goods  and  chattels,  knowing  them  to  have  been  stolen. 
Gut/^s  case  (^),  Morrises  case  (c),  Dea?i's  case  (d). 

For  the  commonwealth  it  was  said  that  no  other  certainty  was 
required  in  an  indictment,  than  wiiat  is  called  by  Lord  Cake 
"  certainty  to  a  certain  intent  in  general^^'  and  not  in  every  par- 
ticular. No  other  description  of  the  offence  is  necessary,  than 
such  as  will  inform  the  defendant  what  crime  he  is  called  to  an- 
swer, as  will  appear  to  warrant  the  jury  in  their  conclusion  of 
g;uilty  or  not  guilty  upon  the  premises  delivered  to  them,  and  as 
will  so  define  the  crime  to  the  court  that  they  may  apply  the  le- 
gal punishment.  Rex  v.  Horn,  (e)  Can  there  be  a  question  upon 
the  face  of  this  indictment,  what  crime  the  defendant  is  called  to 
answer?  Is  not  a  note  of  the  President  directors  and  com- 
pany of  the  bank  of  llie  United  .Stales y  in  the  strictest  sense  u 
oote  drawn  by  tiiat  incorporation?  For  if  this  preposition  indi- 

(u)  2  Enut  Cr.  J.cm  601.  (t/)  J  E,ul  64C 

(t)  I  Leazh  276.  < i^)  Ccnvp.  68? 

(0  2  irncA  52S 


J04  CASKS  IN  THL  SUPREME  COURT 

1807'.      catcs  property  in  the  hank,  then  the  second  reason  In  arrest  ol 

.  ■judgment  must  fail  upon  the  defendant's  own  argument,  since 

v-onimon-  •'      ^  _  *  ^ 

wealth     ^^^  words  "  of  the  goods  and  chattels"  may  be  stricken  out  as 

■V.  surplusage;  and  then  the  articles  stolen  will  be  notes  "  of  the 
IJoYEH.  "said  jfo/ifi  Dnjfeijy  It  is  the  same  as  if  they  were  laid  to  be 
notes  drawn  by  the  company,  which  must  necessarily  be  intended 
to  be  promissory  notes  for  the  payment  of  the  money  mentioned. 
If  thev  had  been  paid  and  cancelled  this  might  have  been  shewn 
under  the  defendant's  pica.  The  contrary  reason  has  too  much 
subtility  in  it  for  justice.  It  leaves  nothing  to  the  discretion  oi 
the  judges,  who  although  they  "  will  not  suffer  a  man  to  be 
"  condemned  of  any  crime  whereof  the  jury  have  not  expressly 
"  found  him  guilty,  by  any  argument  or  implication  from  what 
"  they  have  so  found,  so  on  the  other  hand  they  will  not  suffer 
"  a  criminal  to  escape  for  so  trifling  an  exception,  which  it  would 
"  be  absurd  and  ridiculous  to  take  notice  of;  for  nimia  subtilitan 
"  in  jure  reprobatur^''  2  Haivk.  c.  25.  s.  61.  Craven'' s  case 
turned  upon  its  being  laid  to  be  a  note  convnonly  called  a  bank 
note;  for  if  those  words  had  been  omitted,  the  other  words 
would  have  come  expressly  within  one  of  the  descriptions  in 
2  Geo.  2. 

That  promissory  notes  are  goods  and  chattels  can  hardly  be 
questioned;  for  although  bank  notes  which  are  paid  and  receiv- 
ed as  cash,  may  pass  under  the  description  of  money,  yet  the} 
are  legally  nothing  more  than  choses  in  action,  and  are  ranked 
under  the  head  of  chattels  personal  by  all  the  elementary 
writers.  2  Bl.  Coinm.  397. 

TiLGHMAN  C.  J.  The  prisoner  was  indicted  for  the  robbery 
of  jfohn  Diiffeij  in  a  certain  lane  near  the  highway,  of  the  fol- 
lowing property  viz.  "  Two  ten  dollar  notes  of  the  President 
"  directors  and  company  of  the  bank  of  the  United  States;  one 
"  ten  dollar  note  of  the  President  directors  and  company  of  the 
''  bank  oi  NortJi  America;  one  five  dollar  note  of  the  President 
"  directors  and  company  of  the  bank  oi  Pennsylvania;  and  one 
"  three  dollar  note  of  the  Philadelphia  bank;  being  altogether 
"  of  the  value  of  thirty  eight  dollars  of  the  goods  and  chattels  of 
''  the  said  John  Diifeij:' 

On  tht  trial  of  this  indictment,  the  juiy  acquitted  the  prisoner 
of  the  robbery^  and  found  him  guilty  of  larceny.  His  counsel 
have  offered  tv/o  reasons  in  arrest  of  judgment.  1st.  That  the 


OF  PENNSYLVANIA.  205 

Indictment  does  not  pursue  the  act  of  Assembly,  by  which  the      i  on'' 

property  alleged  to  have  been  stolen  was  made  the  subject  cf— 

robbery  or  larceny.  2d.  That  the  Indictment  lays  the  property  to  .  i  , 

be  the  goods  and  chattels  of  Duffeij.  -^^ 

It  is  admitted  that  bank  notes  were  not  the  subject  of  larcenv     Boyeu 
at  common  law.   But  the  px-esent  question  depends  upon  the  act 
of  Assembly  of  5th  April^  1790,  sec.  5.  by  which  it  is  enacted, 
"  that  robbery  or  larcenv  oiprom'isaorij  notes  for  the  payment  of 
"  money,  shall  be  punished  in  the  same  manner  as  robbery  or 
"  larceny  oi  any  goods  or  chattels.'''' 

The  punishment  of  robbery  and  larceny  being  severe  and 
ignominious,  we  must  confine  ourselves  to  those  strict  rules  of 
construction,  which  have  ahvavs  prevailed  in  the  consideration 
of  indictments  on  highh'  prnal  statutes. 

The  subject  is  not  altogether  new.  Decisions  have  taken  place 
in  England  ox\  a  statute  similar  to  our  act  of  Assembly;  I  meau 
the  statute  of  2  Geo.  2.  c.  25.  s.  3.  !)y  which,  among  manv 
other  things,  bank  7iotcs,  and  notes  for  the  payment  of  moneij^ 
are  made  subjects  of  felony.   In  the  case  of  the  King  v.  Craven.  » 

who  was  indicted  on  this  statute  for  stealing  "  a  certa'in  note. 
**  commonly  called  a  bank  note,  of  the  value  of  one  pound. 
"  marked  &c.  dated  &cc.  and  signed  by  A.  Hooper,  for  the 
"  (iovemorand  Company  of  the  bank  of  ii//^-/rt?z^/,  by  which  said 
"  note,  said  Hooper,  for  said  governor  &c.  did  promise  to  pay 
"  to  Abraham  Neivland,  or  bearer  on  demand,  the  sum  of  one 
"  pound,  the  said  note  being  the  property  of  one  T.  G.  &c.," 
after  conviction,  all  the  judges,  on  reference  to  them  in  March 
1801,  held  the  indictment  ill  laid,  as  in  describing  the  property 
stolen  to  be  a  note,  commonly  called  a  bank  note,  it  did  not  fol 
low  any  of  the  descriptions  of  property  in  the  statute,  and  in 
other  respects  seemed  inaccurate.  What  those  other  respects 
were,  is  not  mentioned.  But  from  what  is  mentioned,  we  see 
the  very  strict  construction  supported  by  the  English  judges. 
One  of  the  descriptions  in  the  statute  is,  notes  for  the  payment 
of  money.  Our  act  of  Assembly  s^y^,  promissory  notes  for  the 
payment  of  money.  The  indirtment  should  cither  aver  in  the 
words  of  the  act  of  Assembly,  that  the  notes  stolen  wtrc  pro- 
missory notes  for  the  payment  rf  moneij,  or  give  sudi  a  descrip- 
tion as  provL'3  them  incont'stablv  to  have  been  pronussorv  notes 
lor  the  payment  of  money,  without  conjecture,  or  reference  tc» 
farts  not  stated  in  the  indirfm.  ti».    T:i  the  cp.ic  before  us,  the 


BOYER. 


206  CASKS  IN  THE  SUPREME  COURT 

180r.      indictau'iit  charges  the  notes  to  be  "  two  ten  dollar  notes  o/*thc 

Common-  "  Pi"esident  directors  and  company  of  the  bank  of  the  United 

weahh     "  StatcSy^  and  so  of  the  rest.   Now  though  I  am  satisfied  from 

1'-         having  often  seen  notes  of  these  banks,  that  they  must  have  been 

promissory  notes  for  the  payment  of  money,  yet  I  cannot  say 

that  this   positively  appears  on  the  face   of  the  indictment. 

A  note  of  ■a.  bank  is  a  general  expression,  by  no  means  posi- 

tiveljf  importing  that  it  is  a  note  by  which  that  bank  promised 

to  pay  money. 

It  appears  upon  search  that  the  precedents  of  indictments  on 
this  act  of  Assembly,  have  not  been  uniform.  In  the  case  of 
the  Commonivealth  v.  Dolan  and  Donelly^  in  the  Mayor's  Court 
October  sessions  1801,  the  exception  now  urged  was  taken  to 
the  indictment.  No  judgment  was  given,  because  the  defen- 
dants absconded;  but  since  that  time  it  has  been  usual  to  frame 
the  indictments  so  as  to  avoid  the  exception. 

Upon  the  whole,  I  am  of  opinion  that  this  exception  is  good. 
The  judgment  must  therefore  be  arrested. 

It  is  unnecessary  to  give  any  opinion  on  the  second  pointj 
although  I  would  by  no  means  have  it  understood,  that  I  think 
the  indictment  bad  because  the  notes  are  laid  to  be  the  goods 
and  chattels  of  John  Diiffey.  Yet  I  certainly  consider  it  as 
more  correct  to  lay  them  to  be  the  property  of  the  person  from 
whom  they  are  stolen,  {a) 

Smith  J.  Two  reasons  have  been  filed  in  arrest  of  judg- 
ment; if  either  of  them  be  valid,  the  judgment  must  be  ar- 
rested. 

Whether  the  great  strictness  in  favour  of  life,  which  has  at 
all  times  been  required  in  England,  in  every  point  of  indict- 
ments in  capital  cases,  ought  to  extend  to  indictments  for 
offences  formerly  capital  in  Pennsylva?iia,  but  now  subject 
only  to  imprisonment  at  hard  labour,  and  a  certain  proportion 
of  the  time  to  confinement  in  the  solitary  cells,  will  deserve 
great  consideration  when  the  point  comes  directly  before  the 
court.  For  the  humane  Judge  Hale  complains,  and  the  com- 
plaint has  been  a  thousand  times  repeated  since  his  time,  "  that 
"  this  strictness  has  grown  to  be  a  blemish  and  inconvenience 
*'  in  the  administration  of  the  law;  for  that  more  offenders 
"  escape  by  the  over  easy  ear  given  to  exceptions  in  indict- 
"  menLs,  than  by  their  own  innocence;  and  many  times  gross 

(a)  Vid.  1  Dyer  5  b 


OF  PENNSYLVANIA.  207 

"  murders,  burglaries,  robberies,  and  other  heinous  and  ciying      1807. 
"  0'-ence>>,  remain  unpunished  by  these  unseemly  niceties;  to"T7~~~~ 
"  the  reproach  of  the  law,  to  the  shame  of  government,  to  the     Avealth 
"  encouragement  of  villany,  and  to  the  dishonour  of  God."         t^'- 
2  Hale  193.  So  far  as  these  unseemly  niceties  have  prevailed    ■"°"'^^^' 
in  canital  cases  decided  before  the  revolution,  we  are  fettered 
by  them.  We  are  not  at  liberty  to  overrule  an  exception  which 
has  prevailed  before  in  a  case  exactlv  in  point,  although  every 
judge  and  every  well  read  lawyer  who  hears  it,  may  be  con- 
vinced it  has  no  foundation  in  the  merits  of  the  particular  case, 
or  in  the  general  principles  of  law. 

However,  great  as  this  evil  undoubtedly  is,  it  is  perhaps  bet- 
ter that  it  should  be  submitted  to,  than  that  the  opposite  evil 
should  creep  into  its  place.  Should  courts  launch  into  a  sea  of 
uncertainty,  having  no  land  marks  to  guide  them,  the  innocent, 
not  knowing  under  a  vague  charge  in  the  indictment  what  they 
are  really  to  answer,  mav  suffer;  and  I  do  not  know  that  the 
guilty  will  have  a  less  chance  of  escape  than  they  have  under 
the  present  strictness.  This  consideration  will  make  us  "  rather  > 
"  bear  those  ills  we  have,  than  fly  to  others  that  we  know  not  of.'' 
Where  courts  are  not  bound  by  established  precedents  or  by 
adjudged  cases  in  point,  they  are  at  liberty  to  exercise  a  sound 
legal  discretion,  in  adjudging  whether  judgment  in  a  criminal  or 
in  a  civil  case  shall  be  arrested. 

I  will  now  consider  the  two  reasons  filed  in  arrest  of  judg- 
ment, in  their  order. 

1.  It  is  generally  a  good  rule  in  indictments  at  common  law, 
that  the  special  manner  of  the  whole  fact  be  set  forth  with  such 
certainty,  as  that  the  party  may  know  with  what  offence  he  is 
charged,  and  thereby  be  enabled  to  prepare  for  and  instruct  his 
counsel  in  his  defence;  that  those  words  of  art,  which  the  law 
hath  appropriated  for  the  description  of  the  offence,  must  be  in- 
serted in  the  inrlictment,  and  cannot  be  supplied  b)  any  other 
words.  2  Ha-ivk.  224.  5.  The  same  rules  which  are  laid  down 
in  the  books,  respecting  indictments  at  common  law,  are  gene- 
rally applicable  to  indictments  on  statutes.  2  Haxvk.  245.  'I'herc 
IS  no  necessity  in  any  indictment  grounded  on  a  statute,  to  re- 
cite that  statute.  Hut  unless  it  be  recited,  neither  the  words 
contra  formam  staluti^  nor  any  periphrasis,  intendment,  or  con- 
elusion,  will  make  good  an  indictment  which  does  not  bring 
«be  fact  prohibited  or  commanded,  in  the  doing  or  not  doing 


208  CASES  IN  TJIK  SUPHLMK  COURT 

1807.      ^vhercf)f  the   oflVnce  consists,  xvithin  all  the  material  xvoriu 

T^mnicTi.-  <?/  ^'''^  statute.  Idevi  '249.  Indeetl,  besides  pursuing  the  very 

wealth     -words  of  the  statutt,  it  is  sometimes  necessary  to  add  othei 

"*  •         words    to   state   the   fact   fully,    ciircctly,   and    expressly;    as 

in  indictments  for  perjury  on  the  statute  of  5  Eltz.^  and  for 

usury  &c. 

Now  what  are  the  material  words  relating  to  this  point  in  the 
act  creating-  the  crimes,  or  to  speak  more  correctly,  making 
promissoiy  notes  for  the  payment  of  money  the  subject  matter 
of  robbery  and  larceny,  ibr  which  the  defendant  has  been  in- 
dicted, and  of  one  of  which  crimes  he  has  been  found  guilty  by 
the  traverse  jury?  They  are  contained  in  the  5th  section  of  the 
act  of  5th  April  1790.  The  only  words  in  this  section  descrip- 
tive of  bank  notes,  art  pro}nissorij  notes  Jor  the  payment  of  vio- 
nei{;  but  such  Avords  are  not  stated  iji  the  indictment  in  question 
as  descriptive  of  the  bank  notes,  for  the  robbery  and  larceny  of 
which  the  defendant  has  been  indicted,  and  for  the  larceny  of 
which  he  has  been  found  guilty.  The  words  in  the  indictment 
describing  the  bank  notes  are  "  Two  ten  dollar  notes  of  the 
"•'  President  directors  and  company  of  the  bank  of  the  United 
''  StatesP''  &c.  Now  these  not  being  the  material  words  in  the  act 
of  Assembly,  making  bank  notes  the  subject  matter  of  robbery 
and  larcenv,  they  not  being  so  at  common  law,  and  this  indict- 
ment being  grounded  on  the  act  of  Assembly,  it  cannot  be  sup- 
ported; this  exception  is  valid,  and  judgment  must  be  arrested. 
However,  it  does  not  generally  follow  that  because  judgment  is 
arrested,  the  party  escapes  punishment  if  guilty.  The  attoraey 
general  may  move  the  court  to  have  him  bound  over  to  answer 
lo  another  indictment,  and  he  cannot  avail  himself  of  judgment 
being  arrested  for  a  mistake  in  the  uiclictment.  He  must  answer 
to  anotlier  indictment  properly  describing  the  offence  with 
which  he  is  charged. 

2.  I  have  my  notes  before  me  on  which  I  had  formed  my 
opinion  on  tlie  second  exception;  but  it  is  not  now  necessary  to 
give  that  opinion.  I  will  only  say,  that  on  a  consideration  of  all 
the  cases,  I  am  by  no  means  prepared  to  say  that  laying  the 
bank  notes  to  be  the  goods  and  chattels  of  Dujfey  would  vitiate 
the  indictment,  were  they  otherwise  technically  described. 
Hov,  c-vcr,  perhaps  it  will  be  advisable  in  future  to  lay  them  as 
x\\Q  property  of  the  o-,v'iicr. 

Judgment  arrested. 


OF  PENNSYLVANIA.  209 

1807. 


209 
61 
397 
479 
162 
96 


Smith  as^ainst  Porter  and  others  executors  of  Sm i  t h .  ^«''«f*  V. 

o  March  25tl 


*'  I  "'HIS  cause  was  originally  instituted  in  the  Common  Pleas  A  debt 
-■-    of  Montgomeri/  county,  from  whence  it  was  removed  to  ■.p(\"|j|,'fj^J^'^" 
the  Circuit  Court  by  habeas  corpus.  It  was  an  action  of  assump-  Act  of  li- 
sit  to  recover  a  debt  due  by  the  defendant's  testator,  to  which  Jvit'^.e%,'v'(l^ 
the  defendants  pleaded  non  assumpsit  and  payment,  and  the  Act]>y  a  clause 
of  /imitations,  and  the  plaintiff  replied  in  the  usual  form.  At  jg^j^,)^  ^^jj 
the  trial  in  the  Circuit  Court,  the  jury  found  the  following  spe- the  testa- 
cial  verdict;  "  And  now,  to  wit  jfune  3d  1805,  a  jury  being  jj^btg^Q  {,g 
"  called  come  &c.  who  being  duly  sworn  and  affirmed  do  say,P=iid' 
"  they  find  on  the  pleas  of  non  assumpsit  and  payment  for  the 
"  plaintiff,  and  assess  damages  at  167/.  3s.  8d.   On  the  plea  of 
"  the  Act  of  limitations  they  find  that  there  was  no  acknowledg- 
"  ment  or  promise  to  pay  by  the  testator  or  executors  within 
"  six  years  before  the  action  brought.   But  the  testator  by  his 
''  will  dated  the  23d  3Iay  1800,  ordered  and  directed, /roe//:^ 
"  the  will.  (The  clause  referred  to  being  in  these  words  '  / 
"  order  and  direct  all  my  just  debts  and  funeral  expences  to  be 
^'' paid.^)    But  whether  by  law  the  words  and  directions  of  the 
"  said  will  are  a  sufficient  assumption  and  acknowledgment  to 
"  take  the  case  out  of  the  operation  of  the  Act  of  limitations  or 
"  not,  the  jury  cannot  say,  but  refer  the  decision  thereof  to  the 
"  court.   If  the  court  shall  be  of  opinion  that  the  words  and  di- 
"  rections  of  the  said  will  take  the  case  out  of  the  operation  of 
"  the  Act  of  limitations,  then  the  jury  assess  the  damages  aa 
"  above,  with  six  pence  costs.  But  if  the  court  shall  be  of  opin- 
"  ion  that  the  said  Act  of  limitations  is  a  bar  to  the  plaintiff's 
'•'  recovery, notwithstanding  the  words  and  directions  of  the  said 
"  will,  then  the  jury  find  for  the  defendants,  unless  the  plaintiff 
"  shall  elect  to  suffer  a  nonsuit." 

It  was  agreed  by  the  counsel,  that  the  question  of  law  arising 
out  of  the  spixial  verdict  should  be  argued  in  bank  in  the  tu'sl 
instance,  and  accordingly  the  case  was  removed  by  appeal,  as 
from  a  decision  of  the  Circuit  Court. 

Mi  In  or  (or  the  plaintiff.  Tlic  debt  is  due  in  conscience,  and 
although  barred  by  the  statute,  it  is  revived  by  the  order  to  pay 
11  his  just  debts.   We  proceed  here  upon  the  same  principlf^ 
Vol.  I.  2D 


210  CASES  IN  THE  SUPREME  COURT 

1807.      which  govern  courts  of  equity,  where  it  has  often  been  held 
Z  that  such  a  testanientar>'  provision  takes  the  case  out  of  the 

^,  statute.  In  Aiidrews  v.  Brown  (a)  it  was  held  that  if  a  debtor 

Porter,  makes  his  will  and  directs  that  all  his  debts  shall  be  paid,  or 
makes  any  provision  for  the  payment  of  his  debts  in  general^  the 
debt  is  revived,  and  is  brought  out  of  the  statute;  and  in  La- 
con  V.  Briggs^  (^)  though  Lord  Hardwicke  appears  not  to 
like  the  doctrine,  yet  he  admits  it  is  the  established  rule  in 
equity,  that  where  there  is  a  trust  of  real  estate  for  payment 
of  debts,  it  revives  debts  barred  by  the  statute  of  limitations. 
Lord  Mansfield  approved  the  principle,  and  said  that  even  a 
court  of  law  upon  a  proper  case  would  say  that  if  a  man  devises 
his  estate  for  the  payment  of  his  debts,  all  debts  barred  by  the 
statute  should  share  the  benefit  of  the  devise.  Trueman  v. 
Fenton.  (c)  An  anonymous  case  mSalk.  154.  is  to  the  same 
point;  and  all  the  cases  go  upon  the  ground  that  the  debts 
still  exist  in  equity,  and  the  duty  remains;  the  statute  has  not 
extinguished  that,  though  it  has  taken  away  the  remedy;  and  of 
course  where  there  is  a  provision  for  payment  of  debts,  a  debt 
upon  which  the  statute  has  run  is  within  the  provision  equally 
with  any  other  debt.  Gofton  v.  Mill,  {d)  It  is  necessary  to  give 
some  operation  to  the  words  adopted  by  the  testator  in  this 
case;  and  if  they  have  not  this  effect  they  have  none.  A  di- 
rection to  pay  debts  is  at  least  as  effectual  in  this  particular  as  a 
trust  to  pay  them. 

Frazer  and  Porter  for  the  defendants.  The  amount  of  the 
English  cases  is,  that  where  a  trust  is  created  by  will  for  the 
payment  of  debts,  those  barred  by  the  statute  are  included;  but 
they  go  no  further.  The  point  cited  from  Andrews  v.  Brown 
was  not  the  point  decided,  it  was  the  argument  of  the  court;  it 
was  also  Lord  MansfieWs  argument  in  Truetnati  v.  Fenton. 
In  Lacon  v.  Briggs  there  was  a  trust  created  by  I^ord  Brad- 
ford's will  for  the  payment  of  his  debts;  so  also  in  Gofton  v. 
Mill^  and  in  the  anonymous  case  from  Salkeld;  in  fact  there  has 
been  no  pretence  in  any  case  to  exceed  this  limit.  Even  this 
has  excited  the  murmurs  of  the  most  respectable  judges  iR 

(a)  Precedents  in  Chan.  385. 
(6)  3  AtL  107. 

(c)  Cffufi.  548. 

(d)  2  Vcrn.  HI.  4  Bac.  Air.  484.  6  Com.  Di^-  341. 


OF  PENNSYLVANIA.  2H 

^Ingland;  and  it  is  very  difficult  to  assign  any  reason  for  it,  un-  1807. 
less  we  take  that  which  is  assigned  by  the  master  of  the  rolls  in  Smith 
Norton  v.  Turvill,  -a)  that  trust  estates  are  not  within  the  sta-  v. 
tute.  The  case  of  the  Earl  of  Strafford  v.  Blakeway  in  the  Poktf.r. 
house  of  Lords  has  verv  much  shaken  all  the  decisions  in  equity, 
even  in  these  cases  of  devises  in  trust,  3  Bro.  Pari.  Ca.  305.;  so 
much  so  that  Lord  Hardivicke  said  he  was  very  glad  that  the 
cause  of  Oughterloney  v.  Poxuis  did  not  turn  on  the  question 
whether  the  demand,  which  was  barred  by  the  statute  of  limi- 
tations, was  revived  by  the  trust,  for  he  should  be  under  some 
difficulty  to  determine  it  after  the  case  oihord  Strafford;  Anibl. 
231. J  and  in  a  case  which  soon  after  this  of  Earl  Strafford 
came  before  Lord  Chancellor  King^  where  the  lapse  of  time 
from  the  commencement  of  the  debt  had  been  considerable, 
although  the  testator  had  willed  his  executors  to  pay  his  debts, 
he  allowed  the  plea  of  the  statute.  Legastkk  v.  Coivne.  (b)  But 
the  decisions  have  at  no  time  gone  the  length  of  the  plaintiff's 
argument.  Here  the  order  was  entirely  useless;  the  law  would 
have  done  the  same  without  it,  as  far  as  lands  and  personalty 
would  go;  and  the  devise  may  be  considered  as  merely  void. 
]  P.  lyms.  90.  Cox^s  qitiere. 

TiLGHMAN  C.  J.  delivered  the  opinion  of  the  court. 

This  case  comes  before  the  court  on  a  special  verdict;  and 
the  single  question  is  whether  a  debt  due  on  account,  and 
barred  by  the  act  of  limitations,  is  revived  by  the  following 
clause  in  the  will  of  Robert  Smith:  "  I  order  and  direct  all  my 
"just  debts  and  funeral  expenses  to  be  paid."  Clauses  of  this 
kind  are  very  usual  in  last  wills.  It  is  a  form  of  old  standing, 
])robably  introduced  from  English  precedents.  There  are  some 
countries  in  which  it  now  is,  or  heretofore  may  have  been  use- 
ful to  direct  the  pa)  mciit  of  debts  in  a  man's  will,  because  it 
may  tend  to  make  certain  kinds  of  property  subject  to  tlie  pay- 
ment, which  otherwise  would  not  have  been  so.  But  in  Penn- 
iijlvania  it  is  altogether  unnecessary,  because  without  such 
direction  the  whole  property  of  the  testator  real  and  personal, 
must  be  applied  to  the  payment  of  his  debts.  To  give  this 
'lirection  the  largest  import  which  it  can  bear,  it  is  no  more 
than  the  desire  of  the  testator  expressed  to  his  executor,  that 

■m)2J'.  Wmx    UV  '!'>   If, ,.../.•  19 ! 


2X2  CASES  IN  THF.  SUPREME  COURT 

1807.      his  just  debts  shall  be  paid.   Whether  the  debts  are  just  or  not 

Smith     "^'^^^^  ^^  ^*^^^  ^®  the  judgment  of  the  executor  before  he  makes 

r.         a  voluntary  payment;  and  il  upon  a  candid  examination  he 

Porter,   thinks  a  debt  not  justly  due,  it  would  be  doing  violence  to  the 

words  of  the  testator,  so  to  construe  them,  as  to  deprive  the 

executor  of  the  legal  means  ol  defence  by  pleading  the  act  of 

limitations.   But  an  executor  is  not  allowed  to  plead  that  act 

against  a  just  debt:  on  the  contrary  if  he  knows  it  to  be  just,  I 

think  it  is  as  dishonest  in  him  to  use  that  plea,  as  it  would  be  in 

the  case  of  his  own  debt.  Considering,  therefore,  the  clause  in 

question  according  to  its  obvious  meaning,  without  regard  to 

judicial  decisions,  it  cannot  be  said  that  it  revives  a  debt  barred 

by  the  act  of  limitations. 

But  as  this  Court  is  bound  by  the  authority  of  cases  adjudg- 
ed by  their  predecessors,  it  becomes  necessary  to  inquire  what 
decisions  have  been  made. 

Some  period  for  the  limitation  of  actions  is  necessary  for  the 
peace  of  society.  I  believe  that  in  all  enlightened  countries  re- 
gulations for  the  purpose  have  been  adopted.  Like  all  other 
good  things,  they  arc  liable  to  abuse;  and  the  indignation  which 
is  excited  in  honest  bosoms  at  an  attempt  to  evade  payment  of 
a  just  debt,  by  a  legal  subterfuge,  has  sometimes  produced  de- 
cisions which,  although  not  now  to  be  contradicted,  are  scarcely 
to  be  reconciled  to  reason.  The  slightest  acknowledgments  of 

debt,  though  very  far  from  any  thing  like  a  promise,  have 
been  held  to  be  evidence  sufficient  to  justify  a  jury  in  finding 
that  there  was  an  actual  promise.  But  the  industry  of  the  plain- 
tiff's counsel  has  not  produced  a  single  case  in  which  it  has 
been  decided,  that  a  direction  in  a  will  like  the  present  revives 
a  debt  barred  bv  the  statute.  It  was  several  times  determined 
between  th<:  years  1690  and  1726,  that  where  a  testator  creates 
a  fund  in  trust  to  pa)'  his  debts,  the  creditors  barred  by  the 
statute  shall  cov.f  in  equallv  ,vith  others.  In  the  year  1727, 
however,  the  House  of  Lords  in  England^  reversed  a  decree 
which  was  founded  on  this  principle  in  the  case  o(  Blakewaif  v. 
The  Earl  of  Strafford^  3  Bro.  Par.  Ca.  305.  In  the  year  1744, 
Lord  Hardwicke  states  the  rule  to  be,  that  debts  barred  by  the 
statute  shall  be  paid  out  of  a  trust  fund  of  lands  created  for  pay- 
ments of  debts,  although  he  dechires  that  he  does  not  see  any 
good  reason  for  it.  3  Atk.  107.  Bat  in  1754,  he  says,  ihai  this 
principle  has  been  a  good  deal  shaken  by  the  decree  of  the 


or  PENNSYLVANIA.  213 

House  of  Lords  in  Lord  Strafford'' s  case,  and  that  if  the  case      igor. 
before  him  had  turned  upon  that  point  he  should  have  taken  time     T"  " 

toconsidcr  it.^'  ^. 231.1n  the  case  oi Legast'icw .Coxvnem  1730,  -^,^ 
MoseleiJ  391.  it  was  expressly  decided  that  the  plea  of  the  sta-  Porteu. 
tute  of  limitations  is  a  good  bar  in  a  case  where  a  testator  or- 
dered his  debts  to  be  paid.  This  case  is  reported  by  Mosely  who 
does  not  stand  high  in  reputation;  it  is  probable  however  that 
the  decision  was  made  as  reported,  because  it  was  but  three 
years  after  the  decision  in  tho  house  of  Lords  in  Lord  Straf- 
ford^s  case,  and  seems  to  have  been  founded  on  it. 

In  our  own  courts,  I  know  of  no  decision  on  the  point  in 
question,  although  I  understand  that  on  more  than  one  occasion 
intimations  have  fallen  from  different  judges  unfavourable  to 
the  revival  of  the  debt;  but  as  no  decision  was  made,  it  would 
not  be  proper  to  give  weight  to  these  intimations.  In  point  of 
authority  then  the  matter  stands  thus :  there  is  one  decision  on 
the  point  that  the  act  of  limitations  is  a  bar,  notwithstanding  the 
direction  to  pay  all  just  debts;  and  there  is  no  expiess  decision 
to  the  contrary'.  This  b-ingthe  case,  and  feeling  no  inclination 
to  go  beyond  the  principles  that  have  been  established,  I  think 
n\\  s«  II  bound  to  savthat  I  do  not  conceive  the  direction  by  Ro- 
bert Smith  to  pay  his  just  debts,  can  be  fairly  construed  so  as  to 
deprive  his  executors  of  the  right  to  plead  the  act  of  limitations 
in  such  cases  as  th^n-  think  proper. 

I  am  therefore  of  opinion  that  a  nonsuit  be  entered  accord- 
ing to  the  agreement  of  the  parties,  the  plaintiff  having  elected 
to  enter  a  nonsuit  instead  of  judgment  for  the  defendants. 


1  ^^ 

214 

2s 

r  yv 

2s 

39 

If 

347 

■  3pw  74 

3pw  78 

12 

115 

60 

266 

214,  CASES  IN  THE  SUPREME  COLKI 


^^^'''  '    SEPTEMBER  TERM  1807. 

Pittsburg, 

September     RoBERT    M'CuLLOUGH    and   GeOKGE    M'CuLLOUGH 

ogiiinst  (juetner. 
In  Error. 

Summons  \  7^  7"  ^^^^  ^^^  EiTor  to  the  Common  Pleas  of  Cruwford  coun- 
jigamst  twc,  VV  t}'.  The  record  she v/td  that  a  summons  issiud  from  the 
to  one,  and  couit  below  at  the  suit  oiGuetner  agoinst  the  two  lU^Cidloughs^ 
"nil»ilhabei"jjpj  ^j^^j  jj.  was  returned  nerved  as  to  Gear  tee,  and  nihil  habct 
as  \u  the  »,       r     •  11- 

other; 'after-  as  to  Robert.   Mr.  lrvi?ie,  an  attorney,  entered  his  name  upon 

wards  an  at-^}^g  docket,  without  restriction,  opposite  to  the  names  of  the 

tOi'iieytr.ter'.  '  ... 

his  anpciir-    defendants;  and  he  afterwards  signed  as  their  attorney  an  agrec- 

ance  withovit  j.j^gj^j  in  which  the  action  was  entitled  aeainst  both  defendants, 
reslviction  '  .  ... 

opposite  the  and  which  referred  to  certain  persons  all  matters  in  dispute  in 

name  of  the  j^  above  cau.ie.  The  referees  awarded  in  favour  of  the  plain- 
on  the  dock- tiff,  and  judgment  vv'as  entered  upon  the  award.  A  fi.  fa.  was 

et;  It  IS  a  Vjgj^  issued  to  AitP-ust  1804,  bv  which  a  mill  and  some  land 
good  appear-  "  '      -    _ 

anceforboth.  were  taken  in  execution,  and  an  inquest  held,  who  found  that 
uesthas'rc  ^^^^  fcnts  and  profits  would  pay  in  seven  years.  The  inquisition 
iurnedthat  was  returned  and  filed,  and  in  November  1805  the  plaintiff  made 
nrofits  u  V  '^^  entry  on  the  docket  that  the  execution  was  disconiifiucd.  He 
pay  in  seven  then  took  out  a  second  //'.  fa.,  and  levied  on  lands  of  Robert, 
phiiuifiran-'^^^^'*^^  were  condemned  and  sold.  The  court  below  was  moved 

notdiscon-  to  set  aside  the  second  execution,  which  they  refused  after  ar- 
linue  his  fi. 

fa.  and  take  gumcnt. 
out  a  new 

one,  wiiltout      J^aldxvhi  for  the  plaintiffs   in  error,   took  two   exceptions; 

leave  oi  the  ••  _  '  • 

,  '.'ji-t.  1st.  That  the  judgment  was  lAf^jixn^i Robert  M'-Cidlough,  dXihou^ 

the  return  to  the  process  shewed  that  he  was  not  a  party.  He 
said  it  did  not  appear  that  Robert  had  authorized  any  person  to 
enter  an  appearance  for  him,  for  there  was  no  warrant  of  attor- 
ney filed  agreeably  to  the  act  of  Assembly.  One  partner  can- 
not enter  an  appearance  for  another,  or  bind  him  by  an  agree- 
ment of  reference.  Edwards  v.  Carter  (a),  Kyd on  axvards,  42. 
Strangfordx.  Green  (b).  Much  less  the  attorney  of  one  part- 
ner. Bacon  v.  Dubarry.  (c) 

ia)  1  Stra-  473.  (c)  Salif.  70. 

(y)  2  Mad.  228. 


OF  PENNSYLVANIA.  215 

2d.  That  the  discontinuance  of  the  first  execution  was  irre-      igoT". 

gular,  as  the  plaintiff  had  made  an  election  of  his  remedy,  and     '  ^p 

the  land  was  in  cfTect  ah-eady  extended  to  him.  He  should  at  all     lough 
events  have  applied  to  the  court;  for  if  it  is  optional  with  him  v. 

to  take  a  new  execution  against  the  same  or  other  lands,  he  mav  Guetsep.  . 
defeat  the  act  of  Assembly,  and  harass  the  defendants  for  ever. 

A.  W.  Foster  for  the  defendant  in  error,  and  S.  B.  Foster  for 
the  purchaser  at  sherifF^s  sale,  argued 

1.  That  in  the  present  stage  of  the  cause  it  must  be  taken  that 
there  was  a  sufHcient  legal  appearance  for  both  defendants,  as 
the  attornev  had  entered  his  name  generally,  and  had  agreed  to 
a  reference  which  bound  both.  Somers  v.  Bdabrega  (a).  Hilk 
«t  al.  v.  Ross  (i),  in  point. 

2.  That  it  was  clear  that  a  plaintiff  must  in  many  cases  be  en- 
titled to  discontinue  h\s  fi.  fa.  and  to  take  out  another  writ;  as 
in  this  case,  if  it  had  appeared  after  inquest  that  the  defendants 
had  no  title  to  a  part  of  the  land.  For  while  the  //.  fa.  was  in 
operation,  as  it  might  be  considered  here,  the  plaintiff  could 
never  have  a  ca.  -sa.  3  Bl.  Coinm.  419.  And  if  the  court  could 
permit  such  an  act,  they  certainly  might  confirm  it,  as  was  done 
below  after  argument. 

There  was  also  an  argument  upon  the  validity  of  the  award, 
but  it  was  not  noticed  in  the  court's  opinion. 

Per  Curiam.  The  judgment  below  must  be  anirmcd,  be- 
cause it  sufficiently  appears  that  the  attorney  appeared  for  both 
the  defendants.  IJut  the  execution  was  erroneous,  because  the 
plaintiff,  having  levied  upon  land,  held  an  inquest  which  deter- 
mined that  the  rents  &c.  were  sufficient  to  pay  in  seven  years, 
and  had  that  writ  returned  and  filed,  had  no  power  without  the 
court's  permission  to  take  out  a  new  execution.  This  has  been 
the  practice  and  understanding  of  the  courts  of  Nisi  Prius,  and 
great  inconveniences  miglit  (;nsu<;  from  a  contrary  i)ractice;  be- 
cause the  plaintiff  might  set  aside  the  j)roceedings  and  levy 
again  on  the  same  land  repeatedly,  until  he  got  a  jury  to  con- 
demn it,  which  would  take  away  from  the  defendant  tiic  bonr- 
't  of  the  act  of  Assembly  upon  this  subject. 

(a)  \  Dall   161.  (A)  3  D.i//.  33l 


lb  3161 

216  '        CASES  IN  THE  SUPREME  COURT  a^''««7 

1^26'jI 
1807.  fl*^*""; 

OW372 

Saturday,  iL  B  E  R  T  ff^fl?/?^;  W 0  0 1) .  i-taoj 

September  M 

12th.  In  Error.  la  3n,;/ 

A  parol  par-  'THHIS  was  a  writ  of  error  to  the  Common  Pleas  oi  Fayette 
twecn  te-  county.   ?roo«^  the  plaintiff  below,  brought  an  action  of 

j.ants  111  partition  against  Ebert^  to  which  he  pleaded  noii  terient  insimul. 
made  by  -^^  ^^^^  ^"^^^^  ^^  the  cause,  Wood  gave  in  evidence  a  deed  from  a 
maikins:  a  certain  John  Lea  to  himself  for  an  undivided  moiety  of  the 
sion  on  t)ie  premises  ill  the  declaration,  and  another  deed  from  the  same  Lea 
sroiind,  and  to  the  defendant  for  the  other  undivided  moiety.  The  defend- 
correspond-  ^^t  then  offered  parol  evidence  to  shew  that  Wood  and  himself, 
ing  separate  before  the  institution  of  the  suit,  had  agreed  to  make  partition, 
is  pood,  not- and  that  accordingly  they  met  upon  the  ground,  and  with  the 
Mithstand-  assistance  of  a  surveyor  mutually  employed  by  them,  they  ran 
for  the  pre-  and  distinctly  marked  a  line  of  partition,  and  actually  made 
vention  of  division  of  the  land  by  each  taking  possession  of  the  part  allot- 
perjiiries.  ted  to  him  by  the  other,  which  had  been  so  held  in  severalty 
ever  since.  This  evidence  was  overruled  by  the  court,  and  a 
bill  of  exceptions  sealed,  upon  which  the  case  was  now  argued. 

Addison  for  the  plaintiff  in  error  contended  that  the  evidence 
should  have  been  admitted,  because  1.  partition  by  parol  be- 
tween tenants  in  common  was  good  at  common  law;  and  2dly 
since  the  statute  of  frauds  it  was  equally  good  if  followed  by  a 
correspondent  possession. 

1.  Littleton  is  express  that  partition  between  parceners  may 
be  made  as  well  by  parol  without  deed,  as  by  deed;  and  the 
same  law  is  laid  down  by  Sir  Edward  Coke  of  tenants  in  com- 
mon, if  they  execute  the  same  in  severalty  by  livery;  Litt.  sec. 
250.  Co.  Litt.  169.  a.;  and  in  Docton  v.  Priest  (a)  it  was  held 
that  a  partition  between  tenants  m  common  is  good  without 
deed,  if  made  upon  the  land^  for  this  amounts  to  a  livery  in  law. 
This  is  exactly  our  case. 

2.  A  parol  agreement  concerning  lands,  partly  executed,  is 
good  in  equity,  1  Fonhl.  164.  ch.  3.  see.  8.;  for  this  is  not  within 
the  statute  of  frauds,  as  the  evidence  of  the  bargain  does 
not  lie  merely  upon  the  words,  but  upon  the  fact  performed. 
2  Pqw.  Cont.  300.  Earl  of  Aylesford^s  case,  (p)  So   wher^ 

(a)  Cro.  Eliz.  95.  {b)  2  Stra.  78?. 


OF  PENNSYLVANIA.  217 

the  agreement  is  confessed  without  being  executed  in  part.  1      1807. 
Pow.  Cont.  292,3.   JVhitchurch  v.  Bevis  ^a),  Attorney  Gen.  v. ~~j:^^^^~ 
Day  (*),  Potter  v.  Potter  (c),  CoUington  v.  Fletcher  (dj.  And         v. 
in  the  case  of  a  parol  pai-tition  and  a  long  possession  in  confor-     ^^'  odd. 
mity  with  the  agreement,  equity  will  not  suffer  even  the  equali- 
ty of  the  partition  to  be  controverted,  but  will  order  convey- 
ances according  to   the  partition.   Ireland  v.  Rittle.   (e)  In  all 
these  cases  the  statute  is  considered  with  reference  to  its  object, 
which  is  to  prevent  frauds  and  perjuries;  so  that  an  agreement 
in  which  there  is  no  danger  of  either.  Chancery  has  always 
held  to  be  out  of  the  statute.  Our  act  of  Assembly,  which  in  the 
particular  now  in  question  copies  the  English  statute,   is  to  be 
taken  with  the  English  decisions,  as  equity  is  a  part  of  our  law. 

Ross  for  the  defendant  in  error  answered,  that  if  the  cases 
were  examined,  it  would  be  found  that  a  parol  partition  by 
tenants  in  common  was  not  good  at  common  law;  and  that  it  was 
explicitly  so  stated  by  Sir  W.  Blackstone^  who  says  that  "  by  the 
"  common  law,  coparceners  being  compellable  to  make  parti- 
*'  tion,  might  have  made  it  by  parol  onl\';  but  joint  tenants  and 
*'  tenants  in  common  must  have  done  it  by  deed,  and  in  both 
"  c.ises  the  convevance  must  have  Ijeen  perfected  by  livery  oi" 
"  seisin."  2  Bl.  Comm.  324.  4  Com.  Dig.  311.  The  statute  of 
frauds  has  however  abolished  the  distinction,  and  made  a  deed 
necessary  in  all  cases. 

Mr.  Ross  was  then  about  to  argue  that  the  equity  decisions  in 
England  could  not  be  of  any  authority  here,  because  we 
had  no  Court  of  Chancery;  and  when  the  act  of  21  March 
1772  for  the  prevention  of  frauds  and  perjuries  was  passed, 
it  wa.s  known  to  the  legislature  that  we  had  no  Court  of 
Chancery.  But  upon  the  Court's  intimating  to  him  that  it  had 
been  the  settled  practice  of  the  Supreme  Court  to  proceed 
upon  equity  principles,  he  relinquished  that  point. 

He  then  said  that  it  was  not  clearly  settled  what  part  perfoi 
-nance  was  sufficient  in  equity;  but  it  must  certainly  be  such  a-; 

(a)  2  Brmjn.  Ch.  559  (</)  2  Atk.  155. 

(Z.)  1  Vet.  220.  (0  1  -M-  541- 

(c)  lb   44!. 

Vol..  I.  op 


J 18  CASES  IN  THE  SUPREME  COURI 

1 807.      necessarily  prcvcntcdfraud,  which  was  not  the  case  here, because 

Ebeut     '^  separate  possession  of  different  moieties  might  be  had  in  point 

V.         of  fact  by  tenants  in  common,  without  a  complete  severance  of 

Wood,     their  title.  At  all  events  the  partition  should  have  been  specially 

pleaded,  and  the  possession  under  it  should  have  been  averred. 

In  Chancery  the  part  performance  must  be  alleged  in  the  bill, 

or  the  statute  will  bar. 

TiLGHMAN  C.  J.  delivered  the  opinion  of  the  court. 

The  defendant  in  error  brought  an  action  of  partition  against 
the  plaintiff  in  error,  who  pleaded  non  tenent  insimul^  and 
thereupon  issue  was  joined.  On  the  trial  of  the  issue,  Ebert  of- 
fered to  give  evidence  of  a  parol  partition  having  been  made  by 
lines  run  and  marked  on  the  ground,  and  of  possession  having 
been  taken  by  each  party  respectively  according  to  this  parti- 
tion, and  the  part  allotted  to  each  having  been  held  in  severalty 
from  the  time  of  the  partition  to  the  time  of  bringing  the  action. 
This  evidence  was  overruled  by  the  court,  upon  which  a  bill 
of  exceptions  M'as  taken,  and  whether  the  evidence  was  proper- 
ly rejected  is  the  question  now  to  be  decided. 

The  defendant  in  error  contends  that  the  evidence  ought  not 
to  have  been  admitted,  1st,  because  the  partition  was  made  b) 
parol;  2d,  because  if  it  had  been  in  writing  it  was  not  admis- 
sible on  the  issue  joined,  but  ought  to  have  been  specially 
pleaded. 

The  first  objection  is  founded  on  the  act  of  Assembly  of  21st 
March  1 772,  by  which  a  writing  is  made  necessary  for  the  pass- 
ing of  any  estate  or  interest  in  lands.  This  act  of  Assembly,  so 
far  as  respects  the  point  under  consideration,  is  in  substance  the 
same  as  the  English  statute  of  frauds  and  j^erjuries;  in  the  con- 
struction of  which  it  has  been  determined  that  specific  execu- 
tion of  a  parol  agreement  shall  be  decreed  in  equity,  where  the 
agreement  has  been  carried  into  effect  in  part  only.  This  deter- 
mination was  founded  on  two  principles :  1st,  that  where  the  par- 
ties have  acted  upon  their  agreement,  there  is  no  danger  of 
perjury  in  proving  it;  and  2d,  because  it  is  against  equity  that  a 
man  should  refuse  to  perfect  an  agreement,  from  which  he  had 
derived  benefit  by  an  execution  in  part.  Whether  the  courts  of 
Chv.ncery  have  gone  further  than  they  ought,  in  thus  indirectly 
giving  efficacy  to  a  parol  agreement  concerning  land,  we  do  not 
think  ourselves  at  liberty  now  to  Inquire;  because  the  prinei- 


OF  PENNSYLVANIA.  219' 

pies  I  have  mentioned  have  been  adopted  by  this  court,  and      1807. 
long  considered  as  the  law  of  the  land;  and  to  question  them~^jjj^~ 
now,  would  shake  many  tides  acquired  under  their  authority.  v. 

\Vc  therefore  think  ourselves  bound  to  say  that  the  evidence     Wood 
offered  by  Ebert  ought  to  have  been  received,  unless  it  was  im- 
proper because  not  applicable  to  the  issue  joined;  which  is  the 
second  point  for  consideration. 

The  plaintiff  below  declared  that  he  and  the  defendant  held  ' 
the  hind  together  and  undivided;  the  defendant  pleaded  that 
they  did  not  hold  it  tog-ether;  and  this  was  the  point  of  the  is- 
sue. Now  what  was  the  evidence  offered  by  the  defendant? 
Why  that  he  and  the  plaintiff  had  made  partition,  which  was  in 
direct  affirmance  of  his  plea,  that  they  did  not  hold  together; 
because  if  they  held  in  severalty,  they  could  not  hold  together. 
The  court  are  of  opinion  therefore,  that  the  evidence  offered 
by  the  defendant  below  ought  to  have  been  received,  and  that 
the  judgment  of  the  court  of  Fayette  county  was  erroneous,  and 

must  be  reversed. 

Judgment  reversed. 


j^«oi  Moore  a  (gainst  Waii  . 

./'Hi 

*"l'jl  In  hKROU.  Pittsburg. 

'ilff  Monday. 

*^  WT^^'^  of  error  to  the  Common  Pleas  of  Washingtori  coun-  J^;,'J''"'^"' 

^^     ^  ^     tv.  Wait^  the  defendant  in  error,  was  sued  before  a  jus-  if  a  justice 

lice  of  the  peace,  who  gave  judgment  against  him  for  88  <i"Jls.  |^'^J'|^ |^.  ^' 

with  interest  from  a  certain  day,  making  the  whole  amount  104c(rtain  sum 

dolls.  2G  cts.   He  appealed  to  the  Common   Pleas,  and  there  .^"j,'"  ^""^j^j^ 

pleaded  the  general  issue  to  the  plaintiff's  declaration,  but  said  nhovc  his  ju- 
,  .  .....  r    •      •     1-    .•  V  ]•    ^        ,_  risdictioii, 

nothing  of  the  justice's  want  of  jurisdiction.   A  verdict  was.^^^^j  1,^^,  j^_ 
found  for  the  plaintiff  for  112  dolls.  C4  cts.,  and  upon  a  motion rinilant  ap- 
m  ari'cst  of  judgment,  the  court  below  was  ol  opmion  that  as  the  (j,^,,,,,,^,, 
transcript  which  accompanied  the  appeal  was  in  place  of  a  writ,  Picas,  ;ii- 
and  the  foundation  of  all  the  proceedings  in  court,  judgment  j|JJJ.'^^.'jjjly 
could  not  be  rendered  on  the  verdict,  because  the  transcript tlic  ^rciur.il 
shewed  that  the  justice  had  no  jurisdiction,  and  all  subsequent      .^  tm,.iai^ 
proceedings  were   a  nullit\.    Ihe  judgment  was  accordingly .ju'ljjincnt 
arrcsted,  and  the  plamtift  took  his  writ  of  error.  rested.  TIio 

prooecdinp', 
upon  an  app''al  .iff  not  dr  novo  in  the  Common  I'I'tia 


^220  CASES  IN  THE  SUPREME  COURl 

1807.  Campbell  for  the  plaintiff  in  error  said  that  the  justice  had 

MooHE  ^^^^  exceeded  his  jurisdiction,  because  the  liquidated  sum  was 
V.  88  dolls,  and  the  judgment  in  fact  for  no  more.  Hut  the  ground 
Wait,  on  uhich  he  relied  was,  that  as  the  defendant  had  pleaded  to 
issue,  he  coidd  not  afterwards  take  advantage  of  the  defect  ol 
jurisdiction  in  the  justice;  the  time  for  pleading  to  the  jurisdic- 
tion being  before  imparlance.  In  the  case  of  a  certiorari  it  was 
otherwise,  but  on  appeal  the  proceedings  were  de  novo  in  the 
Common  Pleas. 

Addison  contra  said  that  the  interest  was  as  much  a  part  of 
the  judgment  as  the  principal;  and  that  as  the  transcript  was  the 
foundation  of  all  the  proceedings  in  the  Common  Pleas,  if  at 
any  time  the  court  discovered  the  justice's  want  of  jurisdiction, 
it  was  enough. 

TiLGHMAN  C.  J.  The  jurisdiction  of  the  justice  is  founded 
on  the  act  of  Assembh';  and  having  exceeded  that  jurisdiction, 
the  judgment  is  erroneous.  On  the  appeal  every  objection  on 
the  law  or  the  merits  was  open  to  the  appellant;  and  it  appear- 
ing to  the  Common  Pleas  on  the  face  of  the  record  that  the 
judgment  of  the  justice  was  erroneous,  it  was  their  duty  to  ar- 
rest the  judgment,  although  this  matter  was  not  pleaded. 

Yeates  J.  and  Smith  J.  concurred. 

Brackenridge  J.  concurred  with  great  reluctance.  He 
•oaid  his  mind  was  not  perfectly  satisfied  that  it  was  not  the  de- 
fendant's duty  to  plead  to  the  jurisdiction,  either  before  the  jus- 
tice or  in  the  Common  Picas. 


OF  PENNSYLVANIA.  ,  221 

1807. 

^6   Scott  administrator  of  Pa  t  t  e  r  s  o  n  against  Rams  a  y  .  Pittsburg, 

■a  Friday, 

Mo'  ,  Septembei 

iTo  In  Error.  18tL. 

T  N  this  cause,  which  was  brought  up  from  the  Common  Pleas  Debts  due 
-*-  oi  IVashingtoii  conwiy  hy  writ  of  error,  u  case  was  stated  gj  ^^^5^^*^ ' 
for  the  opinion  of  the  court,  which  was  in  substance  as  follows:  take  rank 

ow    .         »  1-     1    •  1       r  1  accordincr 

jofin  Fattersoti  dKci  intestate,  possessed  or  personal  pro-^,,  tl,j.ij. " 
pert)',  and  seised  in  fee  of  real  estate.  At  the  time  of  his  death  1"^''ty  at 
several  persons  had  obtained  judgments  against  him  before  jus-  \^\^  death. 

ticts  of  the  peace.  After  his  death  several  creditors  obtained  Ju^ls'iients 

,  .,.,..  1   1        1         •        I  obtained  bc- 

judgments  agamst  his  administrator  on  debts  by  simple  ton- f^i-g  ^  jus- 
tract.  The  personal  estate  being  insufficient,  the  real  estate  was^'ce  of  the 
sold  by  order  of  the  Orphan's  Court,  and  after  the  sale,  some  of  fijej  ;„  t]^^ 
the  judgments  ol)tained  before  justices  of  the  peace  were  filed  Common 
in  the  Court  of  Common  Picas,  and  others  were  not  filed.  The  niadc  knou  u 
questions  for  this  court  were  two:  ^?  tlicadmi- 

1.  Whether  the  simpK-  contract  creditors  (of  whom  the  dc- must  be 
fendant  in  error  was  one)  who  obtained  iudement  against  the  P-"*^ /"■" ''«''' 
admmistrator,  were  to  be  considered  in  any  respect  as  judgment  mcnts  in 

creditors  of  the  intestate,  and  as  such  entitled  to  any  preference  courts  oi 
•  ,    .  record. 

m  the  paym'.-nts  to  be  made  by  the  administrator  out  of  the  per- 
sonal assets,  or  the  proceeds  of  the  real  estate. 

2.  Whether  the  creditors  who  obtained  judgment  before  jus- 
tices of  peace  in  the  intestate's  life,  were  to  be  considered  as 
judgment  creditors  within  the  14th  section  of  the  act  of  19th 
April  1794;  and  whether  any  distinction  was  to  be  made  be- 
tween those  whose  judgments  were  filed,  and  those  whose  judg- 
ments were  not  filed,  in  the  office  of  the  Common  Pleas. 

Addison  for  the  plaintiff  in  error. 

Campbell  for  the  defendant  in  error. 

Tilgh:sian  C.  J.  delivered  the  court's  opinion. 

The  first  question  has  been  determined  by  this  court  in  the 
case  of  Woolcrin(r\,  The  executors  of  Stewart.  ( Deremher  icrvn 
1799.J  It  was  there  decided  on  argument  and  full  considera- 
tion, that  the  order  of  payment  was  to  be  according  to  the  nature 


222  CAbKS  IN   lllE  SUPREISIK  LOUR  I 

jgQ.,       ot  the  debt  at  the  time  of  the  testator's  decease;  and  conse- 

qiunth-  a  simple  contract  creditor  obtained  no  preference  by 

Scott        ,      .    .       .     ,  .         , 

oDtaming  judgment  agauTist  the  executors. 

Ramsay.  I'  ^^^s  been  contended  on  the  second  point,  that  the  tern> 
jud^-?>ienti-^  m  the  act  of  Assembly  19th  April  1794  is  to  be 
restrained  to  judgments  in  a  court  of  record.  But  it  appears  to 
the  court  that  the  meaning  of  the  word  and  the  intent  of  the 
legislature  both  call  for  a  more  liberal  construction.  In  the  same 
session  an  act  was  passed  by  which  the  jurisdiction  of  justices 
of  the  peace  was  extended  to  twenty  pounds,  and  their  judg- 
ments, when  recorded  in  the  office  of  the  prothonotary  of  the 
Court  of  Common  Pleas,  were  "  to  have  the  same  effect  as  judg- 
"•'  ments  obtained  in  the  Court  of  Common  Pleas."  Of  course 
they  become  a  lien  on  lands;  and  it  Avould  be  most  extraordi- 
nary if  the  legislature  could  intend  to  make  them  a  lien  on 
lands,  and  yet  be  of  no  consideration  with  respect  to  personal 
assets.  Wc  are  therefore  of  opinion  that  these  judgments  when 
filed  in  the  prothonotary's  office,  or  when  made  known  to  the 
administrator  before  he  has  paid  away  the  estate,  are  to  be  on 
a  footing  with  judgments  in  courts  of  record.  But  as  great 
inconvenience  might  ensue  if  administrators  were  obliged  at 
their  peril  to  take  notice  of  such  judgments,  the  court  desire  it 
to  be  understood,  that  they  give  no  opinion  whether  the  admi- 
nistrator would  be  guilty  of  a  devastavit  if  he  paid  the  estate  to 
creditors  of  an  inferior  nature,  before  he  received  notice  of 
judgments  rendered  by  justices  of  the  peace,  and  not  filed. 

—  6b    1* 

is ,198 
3,  282 

Friday,  bUORTZ  Ggamst  QuiGLEY.  10     « 

Sepiembcr  ^3    450 

IN    JliRROR.  ^.j    5U'2 

A  bill  of  np'HIS  cause  came  before  the  court  on  a  writ  of  error  to  the 
does'iiot'ne  Common  Pleas  o(  Craxvford  county.  A  motion  was  made 

to  the  opi-  to  the  Common  Pleas  on  behalf  of  Shortz  the  defendant  below. 
Court  in  re-  '^  °P^'^  ^  judgment  entered  iigainsthim  by  ^ligley^  on  a  bond 
■  oivinj^or  with  warrant  dated  4th  December  1800,  conditioned  for  pay- 
"eitimoi?/      ^^-^"''^  °^  '33  dollars  :i:i  cents  on  the  15th  October  1801.  The 

upon  a  mo-  judgment  was  entered  as  oi  October  terin  1803. 

tion  for  sum-       /-»,•  ••  ,1  -i  -^i 

■•aarv  r-ii-f.       ^"  ^"^^  motion  it  appeared  by  evidence  given  to  the  court 

below,  that  by  articles  of  agreement  dated  14th  August  1800,. 


OF  PENNSYLVANIA.  225 

'l^nghy  contracted  to  sell  to  Shortz  \\  tract  of  land  for  which  he      I80r. 
was  to  give  him  a  good  deed,  conveying  the  land  free  from  all    r~~7 
incumbrances;  and  Shortz  was  to  give  a  mortgage  for  the  un-         x-. 
paid  part  of  the  purchase  money.  Shortz  having  pa-id  part  of  the  Qvigi.t\. 
purchase  money,  a  second  agreement  was  made  on  the  4th  De- 
cember 1800,  by  which,  after  reciting  that  Shortz  had  paid  part 
and  given  bonds  for  the  residue  of  the  purchase  money,  ^lig-  ' 

leij  engaged  to  convey  by  good  and  sufficient  deed,  clear  of  in- 
cumbrance, by  the  15th  October  1801;  in  default  thereof  he  was 
to  refund  the  money  he  had  received,  and  the  bonds  of  Shortz, 
upon  one  of  which  the  judgment  in  quJLStion  was  entered,  were 
to  be  void.  §liiig-lci/  did  not  convey  by  the  1 5th  October  1 801 ;  but 
on  the  23d  March  1803,  he  procured  at  his  own  expense  a  pa- 
tent to  be  issued  to  Shortz,  and  on  the  27t)i  July  1803  he  exe- 
cuted a  release  to  him.  The  patent  and  release  were  tenderetl  to 
Shortz  who  refused  to  accej)!  them,  although  he  was  in  posses- 
sion of  the  land,  and  remained  so  at  the  time  of  the  motion. 

After  this  evidence  had  been  given  to  the  court,  the  counsel 
o{  Shortz  offered  to  prove  that  .^n^g-/ci/\s-  title  was  founded  on 
an  actual  settlement  of  the  land  undc  r  the  act  of  3d  Jjjril  1  702; 
and  that  the  settlement,  improvement,  and  residence,  not  having 
!)een  completed  according  to  that  act,  his  title  M'as  defective, 
notwithstanding  the  issuing  of  the  patent.  The  court  refused  tn 
liear  this  evidence,  or  to  open  the  judgment;  on  which  the 
counsel  of  .S'/iC'r/2  tendered  a  bill  of  exceptions,  to  whidi  t^i'. 
court  affixed  their  seals. 

A.  W.  Foster,  and  S.  B.  Foster  for  the  plaintif!"  in  error,  eon- 
tended  that  on  a  motion  to  open  a  judgment,  the  court  was  bound 
to  receive  the  same  evidence  that  would  be  competent  upon  a 
trial  by  jury;  and  that  lor  any  error  in  opinion  in  receiving  or 
rejecting  testimony  uj)on  such  a  motion,  a  I)ill  of  exceptions 
might  be  tendered.  In  this  case  the  plaintiflin  error  had  no  other 
remedy  for  an  obvious  injury.  There  was  nothing  in  the  statute 
against  it,  and  although  the  motion  was  t{)  the  discretion  of  the 
Court  below,  it  was  to  a  sound  discretion  influenced  and  go- 
verned by  the  rules  of  law.  The  groimd  of  the  motion  was  this: 
that  the  articles  of  agrcenunt  executed  by  •^il^^lcij  on  the  4.tli 
December  1800,  were  in  fact  a  part  of  the  condition  of  the  bond 
executed  bv  Shortz  on  the  same  dav.  That  bv  those  articles  the 
bond  was  void  upon  an  event  v.hich  had  occurred  smce  thr 
il'itf',  and  which  the  parties  originallv  acjecd  r.hould  have  that 


224  CASES  IN  THE  SUPREME  COURT 

^807.      effect  if  it  did  occur,  namely,  if  a  certain  time  elapsed  before- 

Shoutz  ^''S'^cy  made  Shortz  a  good  title.  Sfiortz  wished  to  shew  that 
V.         ^jiglcy  never  had  made  such  a  title,  and  never  could  make  it, 

gi  iGLEi .  notwithstanding  the  patent;  that  is,  he  wanted  to  shew  the  true 
meaning  of  the  condition,  which  under  existing  circumstances, 
avoided  the  bond;  and  of  course  proved  that  the  judgment  was 
erroneous.  1  Esp.  Digest,  248.  345.  The  evidence,  though  pa- 
rol, was  perfectly  competent  by  all  the  decisions  in  Pennsylva- 
nia. Field  for  the  use  of  Oxley  v.  BiJdle.  (a)  The  patent  was 
merely  presumptive  evidence  of  title. 

Bahhvin  for  defendant  in  error,  said  that  it  was  an  attempt 
on  the  part  oi  Shortz  to  keep  the  land  without  paying  for  it;  in- 
asmuch as  a  claim  adverse  to  that  of  these  parties  was  never 
heard  of;  so  that  the  plaintiff  in  error  had  verv  little  equity. 
But  at  all  events,  the  case  presented  by  the  bill  of  exceptions  was 
out  of  the  question;  for  a  bill  was  never  before  thought  of  being 
tendered  for  refusing  to  hear  evidence  on  a  motion  to  the  court. 
Lord  Coke  says  that  the  exception  extends  "  not  only  to  all 
"  pleas  dilatory  and  peremptory  &c.  to  prayers  to  be  received, 
"  oyer  of  any  record  or  deed,  and  the  like,  but  to  all  challenges 
"  of  any  jurors,  and  any  material  evidence  given  to  any  jury^ 
"  which  by  the  court  is  overruled."  2  Inst.  427.  But  when  the 
matterwas  proposed  to  the  court  alone,  they  might  hear  what  evi- 
dence they  pleased.  There  would  otherwise  be  no  end  to  delay. 
As  to  the  judgment  itself,  there  was  no  error  in  it,  it  was  entered 
under  a  valid  power,  and  not  until  the  title  had  been  tendered. 

TiLGHMAN  C.  J.  after  stating  the  case,  proceeded  as  follows: 
It  is  first  to  be  considered  whether  there  is  any  error  in  the 
entering  the  judgment.  It  appears  there  is  not.  It  was  regularly 
entered  in  pursuance  of  a  warrant  of  attorney.  The  motion  to 
open  the  judgment  was  an  appeal  to  the  court  to  exercise  a 
summary  jurisdiction  on  principles  of  equity.  In  hearing  these 
motions,  courts  are  not  tied  down  to  those  strict  rules  of  evi- 
dence which  govern  them  in  trials  by  jury;  because  it  is  pre- 
sumed that  their  knowledge  of  the  law  prevents  their  being 
carried  away  by  the  weight  of  testimony  not  strictly  legal. 
I  have  never  heard  it  supposed  that  a  bill  of  exceptions  lies  to 
the  court's  opinion,  in  receiving  or  rejecting  testimony  upon 
motions  for  summary  relief.  The  statute  of  13  Ed.  1.  on  which 

<'J^  2  Daii.  in 


OF  PENNSYLVANIA.  225 

bills  of  exceptions  are  founded,  has  not  been  construed  to  ex»      ISOT. 
tend  to  such  cases.  If  it  did,  the  delay  of  justice  would  be    (^j^Q^.f^ 
infinite.  Every  motion  however  trifling  that  was  ir.ade  in  the         ^,. 
course  of  a  suit,  would  be  the  subject  of  a  writ  of  error.  I  con-  QuiGi-iiY. 
sider  the  point  as  too  well  settled  to  need  discussion. 

The  strength  of  Shortz's  case  consists  in  this;  that  by  the 
agreement  of  4th  December  1800,  the  bond  on  which  judgment 
was  entered  in  this  case,  was  to  be  considered  as  void,  unless 
^ligley  conveyed  the  land  by  15th  October  1801.  Although 
this  is  introduced  into  the  record,  yet  being  a  distinct  paper 
from  the  bond  on  which  judgment  was  entered,  this  Court  at 
the  same  time  that  they  consider  it,  must  consider  a  number  of 
other  circumstances,  particularly  that  Shortz  entered  on  the 
land,  and  still  holds  it.  I  am  by  no  means  satisfied  that  on  a  writ 
of  error  we  are  at  liberty  to  enter  into  those  equitable  circum- 
stances, which  might  induce  the  Court  of  Common  Picas  to 
give  an  opinioQ  one  way  or  the  other.  But  I  do  not  think  it 
necessary  to  express  any  opinion  on  that  point,  and  I  desire  it 
be  understood  that  I  do  not.  Supposing  for  argument's  sake, 
that  we  have  a  right  to  decide  on  the  whole  merits  as  they 
appear  on  the  record,  I  see  no  reason  for  reversing  the  judg- 
ment, because  it  appears  that  Shortz  if  injured,  is  not  without 
remedy.  He  may  have  his  action  on  some  of  the  writings 
which  have  passed  between  him  and  ^dglcy^  and  recover' 
such  damages  as  a  jury  shall  think  he  has  sustained.  Tiiis 
being  the  case,  and  the  real  equity  of  the  matter  appearing  very 
doubtful  on  the  record,  I  am  of  opinion  that  thci  c  is  no  cause 
for  reversing  the  judgment  of  the  court  below. 

Yeates  J.  I  have  no  hesitation  in  saying,  that  if  I  had  been 
on  the  bench  of  the  Common  Pleas  of  Crawford  count}-,  1 
would  have  given  mv  voice  that  the  defendant  below  should 
have  had  a  hearing  of  liis  cause  before  a  jury,  iijion  the  facts 
disclosed  to  us  on  this  argument.  They  would  be  the  legal  and 
and  constitutional  judges  to  ascertain  whether  any  suljstantial 
damages  had  ijeen  sustained  by  reason  of  tiie  ])laintift's  not 
having  niadc  the  title  by  the  15th  October  1801.  IJut  even  as 
matters  now  stand,  Shortz  has  a  full  and  complete  remedy  in 
an  action  founded  on  the  contract  of  the  4th  December  1800,  il 
he  has  l)een  in  li  nth  injured  by  the  delay  of  9^ngleif.  Where 
'^ompensation  for  the  delav  mav  he  made  in  damages,  a  rouri 

Vol.  I.  -3  F 


J26  CASES  IN  THE  SUPREME  COURl* 

1807.      ^f  equity  would  not  on  tliat  ground  alone  decree  it  to  be  a  for- 

e  ^  leiturc.   A  ric-id  adherence  to  the  letter  of  the  second  atrree- 

Shoktz  ...  .  , 

.J,  mcnt,  in  saying  that  it  annuls  the  first,  and  that  !^iigleij  should 

Ql'iglky.  repay  the  six  hundred  dollars  and  interest,  and  cancel  the  other 
bonds,  would  be  the  exaction  of  the  pound  of  flesh  by  a  Shy- 
lock^  and  the  enforcing  of  a  hard  and  unconscientious  bargain, 
at  which  the  feelings  of  every  honest  mind  would  revolt. 
Shortz's  counsel  profess  not  to  go  so  far. 

But  these  facts  are  disclosed  to  us  in  the  bill  of  exceptions 
which  comes  up  with  the  writ  of  error;  and  this  necessarily 
introduces  the  preliminary  question,  whether  such  bill  could 
legally  be  taken  in  the  present  instance.  That  a  writ  of  error 
would  lie  on  the  final  judgment  of  an  inferior  jurisdiction, 
there  can  be  no  doubt;  but  that  for  every  order  of  the  court, 
whether  before  or  after  judgment,  a  bill  of  exceptions  might  be 
tendered,  I  utterly  deny.  It  is  most  generally  taken  under  the 
statute  of  Westm.  2.  on  the  trial  of  an  issue  by  a  jury;  but  it  will 
not  lie  upon  every  opinion  of  the  court  delivered  in  the  pi-ogrcss 
of  the  cause,  as  in  discharging  on  common  bail,  or  directing 
the  (jiiantum  of  bail.  Suppose  the  Court  of  Common  Pleas 
should  order  on  the  trial  of  an  action,  under  circumstances  ol 
the  most  peculiar  hai'dship  and  seeming  injustice,  or  postpone 
it  under  the  like  circumstances,  should  refuse  to  discharge  a 
freeholder  from  his  arrest,  or  to  set  aside  an  execution,  it  can- 
not be  pretended  that  these  and  such  like  interlocutory  deci- 
sions would  be  good  gi'ounds  for  tendering  bills  of  exceptions- 
The  law  confides  the  exclusive  order  and  direction  in  such 
cases  to  the  legal  discretion  and  judgment  of  the  court,  having 
jurisdiction  over  the  subject  matter;  and  courts  of  error  will 
not  deem  themselves  at  liberty  to  review  the  same.  I  remember 
one  instance  wherein  the  propriety  of  dissolving  a  foreign 
attachment  and  of  sustaining  a  domestic  attachment  in  Cum- 
berland county  was  attempted  to  be  questioned  in  the  Supreme 
Court  on  a  writ  of  error,  but  was  refused  in  bank,  though  the 
lacts  had  been  stated  bv  consent  on  the  record. 

If  the  law  does  not  support  the  bill  of  exceptions,  the  ground 
of  complaint  of  the  plaintiff  in  error  fails  him;  and  there  being 
no  error  in  the  record,  properly  so  called,  the  judgment  must 
of  course  be  affirmed. 

Smith  J.  and  Brackenridge  J.  concurred  with  the  Chief 
Justice. 

Judgment  affirmed. 


OF  PENNSYL\  AN'IA  227 

lb  227 

66  215  1807. 

2s  r397 


j|sf233  •  Fitulmrg, 

laV,^         Lessee  of  John  M'Rhea  ag-ainst  Vluume-r.         Friday, 

2w394  September 


2w395 


18th. 


7w243  'TT^HIS  was  an  appeal  from  the  decision  of  Tcates  J.  at  a  Cir-  jj-  .^  '^(^^xey 

7  ^if     ■      C"it  Court  for  Beaver  coitnty  in  September  1806.  l>as  been  du- 

OOP  ,  Iv  niudc  un- 

It  was  an  ejectment  for  a  tract  of  land  lying  north  &c.  of  the  'n^^,  \^^^\  ^u. 

Ohio,  taken  up  under  the  act  of  3d  April  1792.  The  warrant  th'>nty,  and 

1         ,    .      .—  ,         ,    ,  1       ,       -7  r       r  1  1       ,  the  land 

to  the  plamtift  was  dated  the  14.th  Aprd  1792,  lor  tour  hundred  surveyed  re- 

acrcs   of  land  "■  adioinins;  land  this   day   ir'"ir>ted   to    James^^^^^'^^  ^V^^ 
•^  °  .  ',  *'  ,  to  purclia- 

'■''  M'Rheay   This  warrant,  together  wrth  twenty-one  others,  sevs,  a  wai-- 

the  pronertvof  the  Population  company,  was  delivered  by  their '■•'»"^  coming 

'       '         '  '  T  I  V  q/terwards  to 

agent  yohn  Hoge  to  Jonathan  Leet  deputy  surveyor,  who  en- the  hands  of 
tered  them  in  his  official  book.  The  tract  of  country  on  which  ^''^  dei)uty 
these  warrants  fell,  had  been  surveyed  by  authority  ol  the  state  piied  by  him 
in  1785  or  1786,  and  divided  into  tracts  for  the  purpose  of  be-t»tlie  suncy 
ing  sold  to  satisfy  depreciation  certificates;  but  a  sale  ol  all  the  made,  with- 

lands  not  havinc:  been  made,  the  land  unsold  remained  open  to  °"V""",'"'^' 

^  '  r         1      1  ^""  maikinjj 

purchasers  under  the  act  of  3d  April  1792.  Jonathan  Leet  had  Uic  lines 

acted  as  an  assistant  to  his  brother  Daniel  in  making  these  sur-'"lf^^';  ""^- 
veys,  and  had  retraced  the  lines  in  1793.   After  receiving  the  ing  the  9th 
twenty  two  warrants  of  the  Population  company,  he  went  on  the  j*,*-*^^""!  "/j- 
ground,  and  ran  one  line  to  ascertain  the  variation.  That  being  >sih  April 
fixed,  he  attaciied  the  leading  warrant  to  the  ground  it  called  ^''^'' 
for,  then  James  M' Rhea's  warrant,  and  then  JohnlWRluci's  ad- 
joining-, according  to  the  call  of  the  several  warrants.  At  that 
time  there  were  no  settlers  on  the  land. 

It  was  objected  at  the  trial,  that  llie  surve)-  of  the  land  in 
question  was  void  under  the  act  of  8lh  April  1785,  2  St.  Laxvs 
.311,  the  9lh  section  of  which  enacts  that  "  Every  survey  hcre- 
"  after  to  be  returned  into  the  land  office  of  this  state,  upon  ans 
"  warrant  which  shall  be  issued  after  the  passing  of  this  act,  .shall 
"  be  made  by  actual  going  upon  and  measuring  of  tiie  land,  and 
"  marking  the  lines  to  be  returned  upon  such  warrant,  aj'tcr  tiu- 
"  warrant  authorizing  sucli  survey  shall  come  to  tiu;  hands  ol 
"  the  dcput)  surveyor  to  whom  the  same  shall  be  dincted;  and 
'•  every  survey  made  theretofore  shall  be  accounted  clandestine^ 
"  and  shall  be  void  and  of  no  effect  whatever."  Ykates  J.  was 
of  opinion  that  under  the  circumstances  of  the  case  the  survey 
was  not  void  J  l)Ut  the  jury  found  a  verdict  for  the  defendant.  A 
motion  wn*?  thereupon  made  for  a  new  trial,  which  was  awarded 


.  J-JH  CASES  IN  THE  SUJIMIEME  COLKT 

1807.      ^y  ^'is  Honour;  and  it  was  from  this  decision  that  the  detendant 
Tr^  appealed.  The  (jucstion  therefore  for  this  court  was  whether 

^._         the  survey  was  void,  it  liaving  been  made  before  the  warrant 
Plvmmer.  came  to  the  hands  of  the  deputy  surveyor. 

A.  IV.  Foster  for  the  defendant  argued  that  a  warrant  of  the 
kind  in  question,  not  being  descriptive  of  the  land,  could  not 
attach  until  survey,  and  that  there  never  had  been  a  survey  in 
this  case;  or  if  the  survey  in  1 785  were  relied  upon,  it  was  void, 
as  having  been  made  before  this  warrant  came  to  the  hands  of 
the  deputy  surveyor.  The  only  valid  sui-vey  known  to  the  law 
since  the  act  of  1785  is  made  by  going  upon  and  measuring  the 
land  after  the  warrant  has  come  to  hand.  The  deputy  surveyor 
in  this  case  was  not  on  or  near  the  ground  after  he  received  the 
warrant;  and  he  thus  committed  a  double  breach  of  duty,  by 
disregarding  the  plain  direction  of  the  law,  as  well  as  the  expli- 
cit order  of  the  surveyor  general  of  the  19th  January  1793, 
not  to  make  return  of  any  survey  unless  actually  made  on  the 
ground.  The  objects  of  this  section  were  two,  to  prevent 
fraud,  and  to  give  notice  to  persons  desirous  of  improving.  To 
gain  the  first  object,  the  law  rejects  and  disavows  the  applica- 
tion of  a  survey  to  any  warrant  whatever,  if  the  survey  was 
made  before  that  warrant  came  to  hand ;  and  whether  it  was 
made  with  or  without  reference  to  a  warrant  to  be  subsequently 
issued  is  immaterial.  To  shew  how  the  second  object  will  be 
defeated  by  sustaining  this  survey,  it  is  only  necessary  to  state,, 
that  a  settler  would  discover  hy  the  age  of  the  marks  on  the 
gi-ound  that  they  could  not  possiblv  apply  to  a  warrant  under 
tbe  act  of  1 792,  and  that  therefore  he  would  be  secure  against 
any  title  accruing  under  that  act,  as  was  the  fact  in  the  present 
case. 

Ross  for  the  plaintiff  contended  that  the  only  object  of  a  sur- 
vey was  to  designate  the  land  which  was  appropriated  by  a  cer- 
tain warrant;  and  if  the  lines  of  a  tract  were  once  run  by  pub- 
lic authority,  and  a  warrant  subsequently  applied  to  that  survey, 
jt  was  impossible  to  say  there  was  a  violation  of  the  law.  There 
could  be  nothing  clandestine  in  such  a  proceeding,  because  the 
survey  was  publicly  authorized;  there  could  be  no  fraud  upon 
third  persons,  because  the  first  warrant  that  came  to  hand 
\vould  have  the  benefit  of  tlie  survey;  and  the  marks  could  not 


OF  PENNSYLVANIA.  229 

by  possibility  mislead  a  settler  of  common  sense,  because  the      1807. 
deput)'  surveyor  and  not  the  trees  should  be  his  guide.  A  refe-   jvI'Rhev 
rence  to  the  officer  would  settle  the  question,  whether  or  no  the         v. 
lands  were  appropriated.  This  is  a  case  entirely  out  of  the  spi-PiuMMER 
rit  of  the  law.  It  would  surely  be  absurd,  if  a  vacant  tract  were 
surrounded  by  three  surveys,  to  argue  that  a  surveyor  must 
re-measure  and  mark  the  lines  that  were  common  to  the  vacant 
tract;  yet  this  is  the  letter  of  the  law;  it  is  equally  so  to  argue 
that  he  must  i-epeat  an  entire  survey  once  regularly  made  by 
public  authority.  But  it  is  indeed  questionable  whether  the  act 
of  1785  applies  at  all  to  surveys  under  the  act  of  1792;  on 
the  contrary  the  general  provisions  of  the  law  are  clearly  con- 
fined to  the  lands  particularly  mentioned  therein,  and  for  which 
the  legislature  contemplated  so  great  a  press  of  applications 
that  it  became  necessary  to  secure  each  person  his  fair  priority 
by  the  clause  in  question. 

TiLGHMAN  C.  J.  after  stating  the  facts,  proceeded  as  follows. 
It  was  objected  at  the  trial  that  the  survey  of  the  land  in  ques- 
tion was  void,  having  been  made  before  the  warrant  came  to 
the  hands  of  the  deputy  surveyor.  Judge  Tcates  was  of  opinion 
that  under  the  circumstances  of  this  case  the  survey  was  not 
void;  and  that  is  the  point  now  to  l)e  decided. 

As  it  is  admitted  that  the  commonwealth  received  the  full 
price  of  the  land,  that  there  has  been  at  some  time  an  accurate 
survey  marked  on  the  ground,  and  that  when  the  appropriation 
was  made  for  the  plaintiff,  there  was  no  settler  on  the  land, 
nothing  but  very  clear  and  positive  law  ought  to  deprive  the 
jjlaintiffof  his  purchase. 

I'hc  objection  to  the  survey  is  founded  on  the  9th  section  of 
the  act  of  8lh  yf/;///  1785.  I  shall  give  no  opinion  at  this  time 
whether  the  provision  of  this  section  extends  to  surveys  m;idc 
under  the  act  of  3d  Ajiril  1792.  I  imdcrstand  that  in  the  case 
of  Wri_^ht*s  lessee  v.  Wells  tried  at  Nisi  Priits  at  Wasliin^'ton  be- 
fore the  late  Chief  Justice  Jlf'-Kcan  and  Judge  Tratrs^  it  was 
held  that  it  was  restrained  to  lands  then  lately  purchased  by  the 
commonwealth  from  the  Indians,  and  intended  to  be  sold  in  a 
short  time.  But  supposing  that  it  extended  to  all  surveys  on 
warrants  issued  after  the  passing  of  that  act,  thouj;h  the  present 
case  may  fall  within  the  7i>orc/.s,  it  is  evident  that  it  is  not  within 
the  spirit  and  intention  of  the  act.  The  intent  was  to  prevent 


^.,0  CASES  IN  THE  SUPREME  COUR'i 

180r.      i'll  persons,  surveyors  as  well  ns  others,  from  making  sm-veys 
M'Rhea   ^vithout  authority,  and  to  declare  all  surveys  so  made,  absolute- 
V.         ly  void.   Now  the  surveys  of  the  depreciation  lands  were  made 
't.iMMEu.  under  the  authority  of  the  state.  Let  us  compare  this  case  with 
others  that  have  been  decided,  and  concerning  which  there  is 
no  question.  Suppose  a  surveyor  receives  a  warrant,  and  the 
land  to  be  surveyed  on  it  is  bounded  on  three  sides  by  the 
lines  of  other  tracts  which  he  has  surveyed  before.  It  is  not 
contended  that  he  is  obliged  to  run  those  three  lines  over  again ; 
and  why?  Because  it  would  be  useless  trouble,  those  lines  hav- 
ing been  run  and  marked  by  /eg-al  authority  before;  and  vet  he 
does  not  comply  with  the  words  of  the  act,  which  require  him 
to  run  the  lines  and  mark  them,  after  the  warrant  comes  to  his 
hand.  Here  then  is  an  implied  exception  from  the  words,  in  or- 
der to  comply  with  the  spirit  of  the  act.   Nothing  more  is  to  be 
done  in  the  case  before  us.  What  mischief  can  arise  from  this 
construction?   It  is  said  the  actual  settlers  will  be  deceived,  be- 
cause they  can  fmd  no  marks  made  since  3d   April  1792.   But 
if  they  take  due  pains  they  cannot  be  deceived.   It  is  in  vain 
lor  any  man  to  seek  for  proper  information  by  hunting  for 
marks  on  the  ground,  without  applying  to  the  deputy  surveyor, 
who  is  obliged  to  keep  books  for  the  purpose   of  information. 
The  marks  on  the  ground  give  no  satisfaction,  for  they  may 
have  been  made  by  unauthorized  persons.   But  the  surveyor's 
books  combined  with  the  marks  on  the  ground,  will  make  eve- 
ry thing  clear.  The  entries  in  the  books  of  the  surveyor  would 
have  shewn  that  this  lafid  had  been  surveyed;  and  if  upon  com- 
paring the  marks  on  the  ground  with  the  surveyor's  entiy,  a 
difficulty  had  occurred  because  the  marks  appeared  older  than 
the  entry,  this  would  have  been  at  once  explained  by  the  sur- 
veyor on  application  to  him.   Every  prudent  and  honest  man 
would  naturally  make  such  an  application,  before  he  expended 
his  time  labour  and  money  in  making  a  settlement.  If  in  any 
case  it  has  happened  that  a  settler  has  in  fact  been  deceived, 
even  through  his  own  inadvertency,  I  can  only  express  my  hope 
that  the  warrantee  will  take  that  circumstance  into  considera- 
tion, and  let  him  have  a  reasonable  portion  of  the  land  on 
moderate  terms.  I  have  no  hesitation  in  saying  that  in  my 
opinion  every  honest  conscientious  man  ought  so  to  do.   But  at 
present  we  are  called  upon  to  decide  the  law. 


OF  PENxXSYLVANIA.  23 1 

For  the  reasons  I  have  given  I  see  no  cause  to  differ  from  the      1 807". 
opinion  delivered  by  Judge  Teates.   I  am  therefore  of  opinion    7[iRHr7 
that  the  award  of  a  new  trial  be  affirmed.  t. 

Pr.b'AfMF}; . 

Smith  J.  concurred. 

Brackenridge  J.  I  cannot  assent  to  the  opinion  delivered 
by  the  Chief  Justice.  The  act  of  1785  I  have  no  doubt  extends 
to  this  case;  and  although  I  will  not  say  that  an  omission  to  go 
on  the  gi-ound  and  mark  the  lines  avoids  the  survey,  as  this  part 
of  the  section  may  be  considered  directory^  yet  if  the  survey  is 
not  made  after  the  warrant  comes  to  the  hands  of  the  deput}- 
surveyor,  it  is  absolutely  void;  for  that  part  of  the  section  is  posi- 
tive^ and  not  directory.  In  this  case  the  survey  was  not  made 
after  the  wan-ant  was  delivered  to  the  deputy  surveyor. 


-       Lessee  of  P  A  T  T  £  R  s  o  N  against  Cochran.  j^uu-bur ■•, 

Friday, 

■231   ^  I  ''HIS  was  an  ejectment  for  lands  lying  north  and  west  of  the  Septcmbci 

575  I  -         o  1^  Bill. 

i<«      -■-    Ohio  &c.  It  was  tried  before  Tcatcs  J.  at  a  Circuit  Court,r., 

«w     -        „  -       r-  /  1  .      <-  ^''^  want  11 

wj    tor  Beaver  \\\  September  1806,  when  the  following  facts  appear-  :iii  actual 

ed  in  evidence.  The  plaintiff's  title  was  founded  on  a  warrant"'",'-'"'^'" 

,        ,       .,  ...  wittiiu  two 

dated  the  14th  April  1792,  which  was  entered  in  the  deputy  years  from 

surveyor's  office  on  tiie   10th  fxinc  1793,  and  a  survey  J^'^adej|;,^,';^^j'ijf^j|;. 
thereon  the  6th  April  1795.  In  the  spring  of  1797,  the  defend-  Iiuliuns,  can 
ant  entered  on  the  land,  made  an  improvement,  and  I'csided  "'^\;'^,jj'^[J.''' 
there  at  the  time  of  trial.    In  the   summer  of  1797  the  de-titicofa 
fendant  received  warning  to  leave  the  land  from  Ennion  ^^Z- J[,!,j[.J."\^^ 
Hams  the  agent  of  the  Population  company,  to  whom  in  fact  it^'ct  of  Aim.) 
belonged;  but  he  refused  to  give  up  the  possession,  and  told ^pcVson'wL 
IVillinms  that  "  he  held  in  opposition  to  the  Population  compa-  has  taken 
"  ny,  and  meant  so  to  hold."  The  court  was  of  opinion  that  al- p™"J;l.i,',, 
though  the  plnintiff  had  made  no  actual  setdement,  yet  as  hcf^I'diinii. 
was  prevented  therefrom  by  hostilities,  and  was  entitled  to  two^.e  c\pi*r:'i^ 
years  from  die  pacification  by  (ieneral  ^/avm'.v  treaty  for  inak-tif>n  of  tlu-. 
ing  it,  a  refusal  by  the  defendant  during  that  period  to  deliver i,\^,",^[!n,",i 

up  the  possession,  estopped  him  iVoni  urging  a  want  of  settle-'"'  ''«^l'vcr  i'. 

up  to  tlic 
.  ,  warrantee. 

A  hare  rcfnsarl  is  onoii(,'li  to  estop  tl,c  possessor,  wiUioul  the  tlircat  or  iisc  of  actual  fnrc" 


232  OASES  IN  THE  SUPREME  COURT 

180r.  nicnt  against  the  plaintiff's  title.  The  jury  however  found  for 

Lessee  ^^^  defendant.  A  new  trial  was  then  awarded,  and  the  defeml- 

of  ant  appealed  from  the  decision  to  this  court. 
Patteu- 

^'  A.  W.  Foster  for  the  defendant,  said  that  he  took  the  law  to 

C'orHRAN.t'^  settled  that  there  could  be  no  title  without  an  actual  settle- 
ment within  two  years  from  the  pacification  by  General  Wayne's 
treaty.  The  act  of  assembly  of  3d  April  1792,  recognises  no 
prevention  but  by  force  of  arms  of  the  enemies  of  the  United 
States;  and  in  this  case  the  defendant  merely  refused  to  deliver 
up  the  part  he  occupied,  without  any  displaj^  or  threat  of  re- 
sistance. To  prevent  the  defendant  from  alleging  this  matter,  it 
should  at  least  be  shewn  that  he  had  held  the  plaintiff  out  by 
force;  it  might  then  be  a  different  case.  If  A.  is  bound  in  a  bond 
conditioned  to  enfeoff  J.  S.  and  the  obligee  disseises  A.  this  is 
no  plea  to  the  bond,  because  he  might  have  entered  and  made 
the  feoffment,  and  the  obligor  is  bound  to  do  all  he  can;  but  it 
would  have  been  a  good  plea,  that  the  obligee  held  him  out 
by  forccy  so  that  he  could  not  enter.  Lancashire  v.  Killing- 
■worth.  (a)  Co.  Lift.  206.  b. 

Woods  for  the  plaintiff,  said  that  t]>e  defendant  had  entered  du- 
ring the  two  years,  and  had  declared  an  intention  to  hold  posses- 
sion; which  was  all  that  was  necessary  to  bring  it  within  Hazard'' s 
lessee  v.  Loxvrij,  {h)  The  plaintiff  had  a  right  to  settle  on  any 
part  of  the  land,  and  the  law  does  not  demand  of  any  man  that 
he  shall  actually  encounter  danger  in  order  to  enforce  his  right, 
but  always  justifies  his  recourse  to  an  action.  The  defendant 
has  wrongfully  prevented  the  settlement,  and  therefore  he  can- 
not object  the  want  of  it. 

TiLGHMAN  C.  J.  after  stating  the  facts,  proceeded  as  fol- 
lows. The  defendant  relies  on  the  defect  in  the  plaintiff's  title, 
a  settlement  not  having  been  made  in  pursuance  of  the  act  of 
.'Jd  April  1792.  It  was  decided  by  this  court  on  the  motion  for 
a  mandamus  to  TcJich  Coxe^  (c)  and  on  the  trial  of  the  issue  at 
Sunbury  at  the  special  court  directed  to  be  held  by  an  act  of 
Assembly,  (<^/)  that  if  a  warmntee  was  prevented  by  war  from 

(«)  1  Ld.  May.  686  (f)  4  Dall.  iro. 

(4^  Jrfe  t.  166.  {<()  4  Ball  2.17. 


OF  PENNSYLVANIA.  23 S 

making  a  settlement  in  two  years  from  the  date  of  the  warrant,  1807. 
his  title  was  not  extinguished,  but  he  should  be  allowed  a  rea-  ~Y^ssee 
sonable  time  for  making  such  settlement  after  the  prevention  by  of 
war  ceased.  And  it  was  determined  by  this  court  at  this  place  Patter- 
last  September  term,  in  the  case  of  Hazard'' s  lessee  v.  Loivn/,  ^^' 
that  such  reasonable  time  was  not  less  than  two  years  from  the  Cociirav. 
pacification  by  General  JVayne^s  treaty  with  the  Indians.  Now 
the  plaintiff  was  prevented  from  making  a  settlement  within  two 
years  from  the  pacification  by  Waijne^s  treaty,  by  the  wrongful 
act  of  the  defendant,  who  refused  to  give  up  the  land  which  he 
had  improperly  entered  on.  I  say  he  was  hindered,  becaust- 
although  the  defendant  did  not  occupy  the  whole  land,  yet  hav- 
ing said  that  he  held  and  meant  to  hold  against  the  Population 
company,  the  probability  was  that  if  the  plaintift'had  attempted 
to  take  possession,  it  might  have  been  attended  with  personal 
injur}^  The  law  compels  no  man  to  run  risks  of  this  kind. 
Having  demanded  possession,  which  the  defendant  refused  to 
deliver,  the  plaintiffs  most  prudent  line  of  conduct  was  that 
which  he  has  pursued,  to  appeal  to  the  laws  of  his  country  for 
redress.  The  defendant  having  thus  hindered  the  plaintiff  from 
making  a  setdemcnt,  shall  not  be  permitted  to  defend  himself 
against  the  plaintift'  because  a  settlement  has  not  been  made. 
There  are  many  cases  in  which  it  has  been  held  contrary  to 
equity  and  good  conscience,  and  destructive  of  morality,  to 
permit  defendants  in  ejectment  to  take  advantage  of  a  defect  in 
the  plaintiff's  title.  A  man  who  has  received  land  under  a  lease, 
is  not  permitted  to  controvert  the  title  of  his  lessor.  A  mort- 
gagee omits  to  record  his  mortgage  in  six  months;  although  the 
mortgage  is  declared  by  act  of  Assembly  to  be  of  no  validity, 
yet  it  has  been  decided  that  a  person  who  purchases  from  the 
mortgagor  with  notice  of  the  mortgage,  shall  hold  the  land  sub- 
ject to  the  mortgage.  The  present  case  is  mucli  stronger  than 
cither  of  them.  It  would  be  an  outrage  on  society,  a  violation 
of  the  first  principles  of  sound  policy  and  good  government,  to 
permit  a  wrong-doer  thus  to  derive  benefit  from  his  wrongful 
conduct.  Inflced  the  verv  question  in  dispute  is  not  new  in  tliis 
court.  In  the  case  of  Nriq-/unan  v.  Staines^  tried  at  Nisi  Priii': 
before  Judges  Tcates  and  Smithy  and  in  the  case  of  the  viandu- 
mus^  and  in  that  of  Haz.ard\s  lessee  v.  Lowrij  which  I  have  men 
tioned  before,  the  court  expressed  their  opinion  that  a  warran 
tec  whr>  had  not  mn'li-  :»  Ff'Ttlrrment,  might  recover  in  ejectmcn'^ 
Vol.  T.  ^r. 


234  C  ASKS  IN  THE  SUPREME  COURT 

1 807.      against  a  person  who  had  entered  on  the  land  and  settled  during 
"*T~T~~     the  time  allowed  bv  law  for  the  warrantee  to  make  his  settle- 

X^CSSCC  •' 

of         ment.  I  am  therefore  of  opinion  that  Judge  Tcatcs  was  right  in 
Patter-  telling  the  jury  that  upon  the  evidence  given  in  this  case,  the 
*°^       plaintilf  was  entitled  to  recover,  and  that  he  was  right  in  order- 
Coc HK AX.  i"S''^ne^^  trial. 

Smith  J.  concurred. 

Brackenridge  J.  dissented  from  the  opinion  of  the  court, 
because  he  was  of  opinion  that  whether  the  plaintiff  was  or  was 
not  prevented  by  the  defendant  from  making  a  settlement,  was 
a  fact  for  the  consideration  of  the  jury.  He  admitted  at  the 
same  time  that  the  court  might  order  a  new  trial,  where  the 
jury  had  found  clearly  against  the  evidence;  but  as  he  was  not 
satisfied  that  they  had  done  so  in  the  present  case,  he  was 
against  the  new  trial. 


DECEMBER  TERM  1807. 

1808. 
Saturday,  S.  aild  R.   StERRETT  ExCCUtOrS  of  W.  SxERRETi 

^'""''■-'2-  against  Bull,  and  others.  ll''l 

If  an  origi-  ^^'4()h 

a  shop  book  In  Error.  *'  *"8 

&.C    is  in  the 

handwiiUns  rj-iHIS  was  a  writ  of  error  to  the  Common  Pleas  of  Chester 

oi  2L  clerk  I 

it  must  be       -*"    county.   It  was  an  action  brought  by  the  defendants  in 

proved  by     error,  (the  plaintiffs  below)  who  were  fumacemasters,  to  re- 

iiim  bcr  re  u  •  r 

it  can  be  ad- cover  the  price  of  some  pig  iron  sold  to  Sterrett,  who  was 

oSence  ^  forgemaster.  Upon  the  trial  of  the  cause  in  August  1806,  the 
unless  he  is  plaintiffs,  to  prove  the  sale  and  delivery  of  the  iron,  offered  in 
^f^jJ;."''J^"g^^ evidence  a  book  which  Smithy  one  of  the  plaintiffs,  had  pre- 
of  the  court,  viously  swom  was  their  book  of  original  entries^  kept  principally 
ney\^°Roi's  ^^  ^^^ "  °^  ^^^^^  clerks,  although  some  of  the  entries  were  by  him ; 
1  Da/l.23ii.  but  the  entries  bearing  upon  this  cause  zvere  7nade  hij  a  clerk. 
A  receipt 
lor  goods 

written  in  a  book  of  original  entries  by  the  clerk,  and  signed  by  the  person  to  whom  the 
goods  arc-  delivered,  must  be  proved  in  the  same  manner  as  other  receipts;  and  a  cus 
torn  lo  treat  it  a.s  an  original  entry  is  bad. 


OF  PENNSYLVANIA.  035 

This  evidence  was  objected  to,  upon  the  ground  that  tlic  cntritis      j  soa. 
should  be  proved  bv  the  clerk  himself:  but  the  court  admitted;," 
the  evidence,  and  die  President  sealed  a  bill  of  exceptions.  -^, 

After  the  book  was  admitted,  it  appeared  that  what  was  Bclt. 
called  an  entr}-,  was  an  agreement  written  in  the  book,  in  the 
following  words:  "  We  the  subscribers  do  promise  to  deliver 
''  Mr.  William  S te rr ett  yxxmor^  the  number  of  tons  of  pigs  to 
"  our  respective  names  annexed;"  under  which  was  a  schedule 
presenting  different  columns,  wherein  were  written  the  day  of 
the  month,  the  quantity  of  pig  iron  delivered,  and  the  signa- 
tures of  certain  persons,  said  to  be  carters,  or  their  marks  with 
their  names  filled  in  by  the  clerk.  A  witness  was  then  called, 
who  swore  that  he  kept  books  as  clerk  at  two  furnaces,  about  a 
year  and  a  half  at  one,  and  a  few  weeks  at  the  other,  and  never 
at  any  furnace  besides;  that  in  these  places  the  customary  mode 
of  charging  pig  iron  delivered,  was  the  one  pursued  in  this 
case;  receipts  for  the  pigs  were  taken  from  the  carters  of  the 
forgemasters,  who  hauled  the  pigs  away;  to  whom  at  the  same 
time  an  invoice  was  given  expressing  the  same  quantity  with 
the  receipt.  There  was,  however,  no  proof  that  the  signatures 
in  this  case  were  made  by  the  carters  of  the  forgemasters,  or 
by  their  authority.  The  defendant's  counsel  again  objected  to 
this  evidence,  since  on  examination  it  appeared  to  be  a  common 
receipt,  and  not  an  entry  properly  so  called,  and  since  the  testi- 
mony fell  far  short  of  establishing  an  usage  for  this  kind  of 
entry.  The  President  was  opposed  to  the  testimony;  but  the 
associate  judges  admitted  it,  and  scaled  a  second  bill  of  excep- 
tions. The  jurv  found  for  the  plaintiffs. 

The  bills  of  exceptions  were  now  sent  up  with  the  record, 
md  the  admissibility  of  the  evidence  argued  before  this  court. 

7'.  Ross  for  the  plaintiffs  In  error,  contended  that  as  to  the 
matter  of  exception  in  the  first  bill,  it  stood  here  precisely  up- 
on the  same  footing  as  in  J:iniflam/.  The  entries  having  been 
made  by  the  clerk  of  the  defendants  in  error,  he  should  have 
been  produced ;  or  upon  proof  that  lie  was  dead  or  w;is  not  with- 
in the  power  of  the  court,  e\  idcnce  that  the  entries  were  in  his 
handwriting  should  have  been  demanded  as  the  next  best  legal 
evidence  to  be  procured.  3.  lil.  Coinm.  368.  That  as  to  the  mat- 
t'T  ol  the  secondb'iW,  it  was  obvious  that  the  writings  referred  to 


23<i  CASES  IN  THE  SUPREME  COURT 

1 808.      ^vere  common  receipts,  purporting  to  be  executed  by  carters  to 
71  whom  pier  iron  was  delivered;  and  therefore  to  charge  the  plain- 

^,  tifhs  m  error,  it  was  essential  in  the  hrst  place  to  prove  the  au- 

Blll.  thority  of  the  carters,  and  then  to  prove  their  signatures.  To 
change  the  nature  of  evidence,  by  calling  tliis  receipt  book  a  book 
of  original  entries,  was  certainly  a  new  attempt;  and  it  was  out 
of  the  question  to  support  such  an  attempt  by  a  usage  so  imper- 
fectly proved,  and  which  would  still  be  a  doubtful  usage  in  point 
of  law  after  it  should  be  proved  completel)% 

Trazer  for  the  defendants  in  error,  answered, y^r*;,  that  the 
strict  rules  of  law  with  regard  to  evidence,  ought  not  to  be 
extended  to  mercantile  transactions;  and  he  cited  the  case  oi 
Riche  and  Richards  v.  Broadjield^  (a)  in  which  an  account  sales 
of  an  adventure  shipped  to  Ncw-Tork^  signed  by  the  factor,  was 
admitted  in  evidence  to  prove  a  loss  on  the  goods,  upon  the 
mere  proof  of  the  factor's  handwriting.  That  the  rule  which 
subsisted  in  England  upon  the  subject  of  shop  books  or  books 
of  original  entries,  had  been  held,  from  our  peculiar  situation, 
to  be  inapplicable  in  this  state;  for,  in  the  case  of  Poidteney  et  al. 
V.  Ross,  {b)  it  was  ruled  by  Shippen,  President,  that  *'  although 
"  in  England  the  shop  book  of  a  tradesman  is  not  evidence  of  a 
"  debt,  without  the  assistant  oath  of  the  clerk  who  made  the  en- 
"  try,  yet  here,  from  the  necessity  of  the  case,  as  business  is 
*'  often  carried  on  by  the  principal,  and  many  of  our  tradesmen 
"  do  not  keep  clerks,  the  book  proved  by  the  oath  of  the  plain- 
"  tiff  himself  has  always  been  admitted."  In  the  second  place, 
the  object  of  the  evidence  mentioned  in  the  second  bill  was  to 
prove  the  deliverv  of  the  pig  iron  to  the  plaintiffs  in  error;  and 
inasmuch  as  a  mere  charge  of  delivery  made  by  the  defendants 
in  error  in  their  books,  would  have  been  evidence  of  the  fact 
imder  the  oath  of  Smith,  can  it  be  any  the  less  so  because  the 
precaution  has  been  taken  of  making  the  carters  sign  a  receipt? 
This  is  stronger  than  the  case  of  Price  v.  The  Earl  of  Tor- 
ring-fon,  (r)  in  which  the  signature  of  the  plaintiff's  own  dray- 
man to  an  account  of  beer  delivered  was  admitted  in  evidence 
to  charge  the  defendant.  Esp.  141.  Bull.  N.  P.  282.  Jiut  this. 


(a)  1  JJail.  16.  ^c)  1  Sai.f-.SB^ 

'h)  1  Dall.  2::8. 


OF  PENNSYLVANIA. 


237 


moreover,  was  the  customary  mode  of  making  entries  at  iron      j  gos. 
works;  and  they  are  therefore  to  be  proved  as  original  entries  of"; 
any  other  kind.  It  is  the  custom  for  forgemasters  to  send  t/ieir    '^^^^^^-'^'^ 
carters  to  the  fumacemasters;  and  the  writing  taken  together      Bui.r 
amounts  to  a  charge  of  the  delivery  of  pig  iron  to  the  forge- 
master. 


TiLGHMAN  C.  J.  delivered  the  opinion  of  the  court. 

This  case  is  brought  before  the  court  on  a  writ  of  error  to  the 
Court  of  Common  Pleas  of  Chester  county,  and  is  founded  on 
two  bills  of  exceptions  taken  on  the  trial. 

Although  there  are  two  bills  of  exceptions,  yet  the  subject  of 
ihem  is  the  same,  viz.  the  admissibility  of  the  plaintiff's  book 
in  evidence.  They  present  the  matter  under  two  different  points 
of  view,  and  shall  be  considered  separately. 

The  first  exception,  which  is  signed  by  the  presiding  judge, 
was  taken  to  the  admission  of  the  book  after  one  of  the  plaintiffs 
liad  sworn  "  that  it  was  their  book  of  original  entries,  made 
"  principally  by  two  clerks  of  the  plaintiffs."  It  appears  that  if 
the  book  can  properly  be  called  a  book  of  entries,  it  is  one  of  a 
very  uncommon  kind;  it  does  not  contain  entries  of  goods  sold, 
in  the  usual  manner,  but  is  in  fact  a  book  containing  the  receipts 
of  different  carters  for  quantities  of  iron  received  by  them  to  be 
carried  to  different  persons.  There  was  no  proof  that  these  car- 
ters were  in  the  service  of  the  plaintiffs;  on  the  contrary,  I  un- 
derstand that  they  were  employed  by  the  persons  to  whom  the 
iron  was  to  be  delivered.  Those  who  could  write  signed  their 
names,  but  where  they  could  not  write  they  made  their  mark, 
opposite  to  which  the  name  was  written  by  a  clerk  of  the  plain- 
tiffs. Now  if  this  is  to  be  considered  as  a  receipt^  there  is  no 
reason  why  the  handwriting  or  the  making  of  the  mark  should 
not  be  proved.  But  even  if  It  could  be  considered  as  an  entry 
made  by  the  clerk,  he  should  be  produced,  or  proof  made  that 
he  was  dead  or  out  of  the  power  of  the  court.  In  consideration 
of  the  mode  of  doing  business  in  the  infancy  of  the  country, 
when  many  people  kept  their  own  books^  it  has  been  permitted 
from  the  necessity  of  the  case,  to  offer  these  books  in  evidence. 
But  when  no  such  necessity  exists,  when  the  fact  is  that  clerks 
have  been  employed  and  the  entries  made  by  them^  there  is  no 
cause  for  violating  that  vfhc  prin^iplr-,  tliot  no  man  shall  be  ul- 


238  CASLS  IN  THL  SUPHEMK  COURT 

1  s(j<?.      lowed  to  give  testimony  for  liimself.  The  court  are  thcrciore 
DiEKUKi  r  of  op"''iori'>  that  as  a  book  of  original  entries,  under  the  circum- 
V.         stances  of  this  case  the  evidence  was  improperly  admitted. 
Bull.  AVhen  the  second  exception,  signed  by  the  two  associate 

judges,  and  not  by  the  president,  was  taken,  the  book  was  sup- 
ported by  the  evidence  of  a  witness  who  gave  testimony,  that  to 
the  best  of  his  knowledge  this  book  was  kept  according  to  the 
custom  of  irotimasters.  We  do  not  think  that  an\-  such  custom 
was  well  proved.  The  Avitness  had  only  been  clerk  a  year  and  a 
half  at  one  furnace,  and  a  few  weeks  at  another.  But  even  if  it 
had  been  better  proved,  the  court  are  of  opinion  that  it  would 
be  going  too  far  to  give  the  force  of  law  to  a  practice,  which 
would  tend  to  charge  the  purchasers  of  iron  with  large  sums  of 
money,  for  iron  delivered  to  carters,  who  gave  written  receipts^ 
without  cither  proving  that  those  carters  were  in  the  employ  of 
the  purchasers,  or  that  they  signed  the  receipts  in  the  books  of 
the  seller.  It  ma}^  have  been  the  custom  to  take  receipts  in  the 
manner  these  are  taken;  and  it  appears  to  be  a  very  prudent 
custom,  if  you  add  to  it  the  precaution  of  making  the  carter 
produce  an  order  from  the  purchaser,  before  the  iron  is  de- 
livered; but  it  has  not  been  the  practice  of  courts  of  justice  to 
admit  such  receipts  as  evidence,  without  more  corroborating 
testimony  than  was  offered  in  this  case. 

The  opinion  of  the  court  is,  that  the  evidence  was  improperly 
admitted,  and  consequently  the  judgment  of  the  Court  of  Com- 
mon Picas  must  be  reversed. 

Judgment  Reversed. 


i'aifie  u'av- 


Same  Causp:. 


On  tlic  re-       A   I'"  i  l^K  t^c  reversal  of  the  judgment  in  this  cause,  Frazei 

yersal  of  ilie  T\.  moved  the  Court  to  award  a  venire  Jacias  de  novo  to  the 

«f'.-i\(r.vcr     court  below.  The  exercise  of  such  a  power  by  the  court,  he 

court  upon  agaid^  would  be  attended  by  a  saving  of  time  and  expense  to  the 

.'cpticmTto    parties,  who  in  case  of  a  general  reversal  of  the  judgment, 

evidence,      Avithout  a  venire  de  novo^  must  resort  to  a  new  suit;  and  he 
tiiis  Court  ,     ,     ,  i  ^      r  i    .1 

r.iav  award  a  contended  that  the  court  as  a  court  ot  error  possessed  that 

-rrnire  facias  authority,  as  was  evident  from  cases  both  in  England  and  the 

United  States.  In  Harwood  v.  Goodright^  {a)  Error  from  the 

{(t)  Go-vp  89. 


OF  PENNSYLVANIA.  239 

Coramou  Pleas,  Lord  Mamfield  said  that  the  House  of  Lords      igos. 
had  in  two  instances  awarded  the  writ,  and  that  the  King's^^,^^^^^.^.^. 
Bench  as  a  court  of  error  had  the  same  jurisdiction;  and  after-         x<. 
wards  in  dehvering  the  opinion  of  the  court  page  91.  he  says     BuLt> 
if  either  side  had  moved  for  u  venire  facias  de  novo  "•'  this  couri 
"  as  a  court  of  error  could  have  granted  it."  So  in  Grant  v. 
Aatle^  (a)  which  was  a  writ  cf  error  from  the  Common  Pleas, 
brought  by  the  defendant  below,  the  court  said  "  There  was  no 
*•'  doubt  but  a  ':;cnire  de  novo  might  be  granted  by  a  court  of 
"  error;  that  it  had  been  done  by  the  House  of  Lords,  and  was 
"not  a  new  practice,  (ITSl)  for  upon  inquiry  made  by  this 
"  court  on  a  late  case  from  Ire/and,  a  great  many  instances  had 
"  been  found;"  and  so  a  venire  was  awarded,  and  the  record 
sent  back.   In  Davics  v.  Pearce  et  al.  (^),  a  venire  de  novo  was 
awarded  upon  the  reversal  of  a  judgment,  on  a  /;///  of  excep- 
tions. So  in  Bc7H  V.  Baker,  (c) 

In  the  Supreme  Court  of  the  United  States  this  power  has 
beenexercisfd  in  one  instance,  and  in  another  admitted  though 
not  exercised,  because  the  court  were  divided  in  opinion  as  to 
the  jurisdiction  of  the  court  below.  This  latter  case  was  Binj^-- 
ham  V.  Cabot  et  al.  (d)  But  in  the  former,  Clarke  v.  Russcl^  (e) 
there  was  a  perfect  verdict  below  for  the  plaintiff,  a  bill  of  ex- 
ceptions tendered  by  defendant  to  the  opinion  of  the  court 
upon  a  question  of  evidence,  a  writ  of  error  sued  out  by  defen- 
dant, a  reversal  of  the  judgment  in  consequence  of  admitting 
the  evidence,  and  a  venire  facias  de  novo^  which  is  exactly  thi-i 
case. 

Frazer  also  cited  Trevor  v.  JVall^  (f)  in  which  the  venire 
was  refused;  but  there  the  proceedings  originated  in  an  in- 
ferior  court.    2   Bac.    Ahr.    Error.    ;//.   2.    2   Cro.   Jac.  206. 
1  Show.  127.   Cas:  temp.  Ilardxi'.  CA.   Salk.  403.  Com.  JJ/(f. 
Pleader.  2  B.  20.* 

J^os.s-  relied  on  the  case  of  Street  v.  /lopki/iso/i  et  al.  (j^j, 
rror  in  /?.  /:'.  in  Lord  Ifardiv'Hkc^.i  time;   in  MJuch  the  court 

(<i)  iJoiifi.  708.  (731 ).  (f)  3  Datt.  4 1.5. 

(A)  2D.isf  K.  12 J.  {J)  1  D.  tr  /;.  I.) I 

(c)  3  Z).  cj*  K.  27.  {y^)  2  Sir.  103.>. 

(«/)  3  Dall.  19.  42. 
•  Vid.  note  (fl)  to  Davie*  v.  Pierce,  Q  D.  If  J\.  126.  wlicrc  tlie  repoi-tcf 
I  IK  rl.'i«^p.l  tl..-  ri"'  -:  in  \\]vi]\  fi  mire  facia*  dc  rox.t  mny.bo  ;;rantf(l 


Bum. 


210  CASES  IN  THE  8 U P RKME  CO URT 

1 808.      say  that  they  cannot  award  a  venire  dc  novo^  because  the  action 
Sterkett  was  not  in  the  same  court.   He  also  adverted  to  its  being  a  case 
V.        of  the  first  impression  in  the  Supreme  Court;  but  he  did  not 
press  his  argument  upon  either  point. 

Per  CuRiAJi,  We  have  no  doubt  that  we  have  power  to 
award  a  venire  facias  dc  novo.  It  tends  to  the  despatch  of 
justice,  as  it  prevents  delay;  and  there  can  be  no  reason  against 
it  but  want  of  precedent  in  this  court,  for  the  cases  cited 
seem  to  shew  full  authority.  The  practice  of  the  Supreme 
Court  of  the  United  States^  although  not  binding  upon  us,  will 
always  command  great  consideration. 

Judgment  that  the  record  be 
remitted  with  award  of 
Venire  de  novo. 


"Tr240( 

10si4Ul 

It  459 

Hazard  against  Israel.  j«_^ 

^iaturday,         ^ 

3  •  r  I  ^HIS  was  an  action  of  trespass  brought  against  the  defend- 
In  an  action  -1-  ant,  who  was  sheriff  of  the  county  of  Philadelphia^  to  re- 
sheriff  for  cover  damages  for  the  misconduct  of  his  officer  in  the  execu- 
the  miscon-  ^jon  of  ^fi.  fa.  It  was  tried  before  Brackenridge  J.  at  Nisi 
officer  in  the  Prius  in  December  1807,  when  the  jury  found  a  verdict  for  the 
execution  of  plaintiff,  750  dolls,  damages.  The  defendant  now  moved  for  a 
not  ne'cessa-  new  trial  on  the  grounds  that  the  verdict  was  against  law  and 
ry  to  shew  a-gyijence,  and  the  damages  excessive, 
warrant  to  ^     The  facts  as  reported  by  Judge  Brackenridge  were  as  fol- 

the  officer;    Jqws:  Lewis  as  executor  of  Fuller  broucrht  a  suit  against  the 

this  is  ncces- 

sai-y  only  in  plaintiff  and  Bringhiirst  as  administrators  with  the  will  annexed 

the  case  of  a 

bailiff;  but  in 

this  state 

there  are  no  bailiffs,  their  place  beinpf  supplied  by  deputies  whose  authority  is  sufficiently 

shewn  by  proof  of  a  (general  privity  with  the  sheriff. 

The  sheriff"  is  answerable  for  the  misconduct  of  his  deputy,  whether  he  recognises  and 
adopts  his  acts  oi-  not. 

A  Jury  may  give  exemplary  damages  against  the  sheriff  for  the  misconduct  of  his 
deputy. 

Ifadeputy  sheriff  enters  the  house  of  an  administrator  to  look  for  goods  of  the  intestate, 
and  afterwards  jjrocceds  to  levy  upon  the  goods  of  the  admini.strator  from  whom  nothing  is 
d»ie,  he  is  a  trespasser  ab  ir.ltw- 


OF  PENNSYLVANIA.  241 

*A  Clarkson,  in  which  judgment  was  obtained  for  a  considerable  \  308. 
sum,  reserving  the  question  of  assets.  Upon  this  judgment  ■a.fi.Ja.  Vr 
issued  for  the  debt,  to  be  levied  of  the  testator's  goods, and  seven  v. 
pounds  ten  shillings  costs  to  be  levied  in  like  manner  if  goods  Israkt.. 
were  found  otherwise  dc  bonis  propriis  of  the  administrators. 
While  the  execution  was  in  the  hands  ofSuter  the  deputy sherift', 
he  mentioned  the  circumstance  to  Mr.  Reedtht  attorney  of  the 
administrators  on  record,  who  told  him  that  the  costs  were  paid 
to  the  defendant;  and  the  fact  was,  that  before  the  execution 
issued,  Mr.  Reed  had  requested  the  sheriff  to  charge  the  costs 
to  his  private  account,  to  which  he  assented.  There  was  no  pre- 
tence that  Clarksoti'a  administrators  had  any  of  his  goods  in 
their  hands  at  the  time  of  the  execution  or  afterwards ;  neverthe- 
less Snter  on  the  return  day  of  the  writ  went  between  ten 
and  eleven  o'clock  at  night  to  the  plaintiff's  house,  and  there 
proceeded  in  a  rude  and  insolent  manner  to  levy  upon  the  fur- 
niture in  the  parlour  to  the  amount  of  seven  or  eight  hundred 
dollars,  and  then  asked  for  more  property.  Mr.  Recd^  who  was 
called  in,  forbade  Suter  to  levy,  asked  him  to  read  the  execution, 
told  him  that  the  plaintiff  was  answerable  for  costs  only,  and  tliat 
thev  were  paid.  Suter  answered  that  he  knew  his  duty  as  well  as 
Mr.  /?eefi^,andthathe  was  levying  for  debt  and  costs;  he  then  con- 
tinued to  make  his  inventory,  and  afterwards  went  away,  but 
without  removing  any  of  the  goods.  On  the  next  morning  In- 
ifersoll  moved  the  court  to  set  aside  the  levy;  and  in  the  course 
of  the  day  the  defendant  wrote  to  the  plaintiff  that  he  rescinded 
the  levy,  and  then  made  the  following  return  to  the  fi.J'a.:  "  No 
"  goods  of  Clnrkson  whereon  to  levy  &c.  and  for  default  thereof 
•■'  levied  on  divers  goods  Sec.  o{  Ehenezcr  Hazardiox  the  dama- 
'*  ges,  which  are  since  restored,  as  the  amount  of  the  said 
"  damages  were  previousl}'  secured  to  me,  and  my  bailiff 
''  when  the  said  levy  was  made  was  not  informed  llureof." 

Condij  for  the  defendant.  1.  As  to  the  act  of  Suter  the  offi- 
cer. He  was  not  a  trespasser;  he  had  a  right  to  levy  for  the 
costa^  for  although  the  siieriff  had  security  for  them,  they  were 
not  paid;  and  if  h(;  was  dissatisfied  with  the  security,  whatever 
was  its  character,  there  was  no  legal  impediment  in  tiie  way  of 
his  compelling  the  pavment  of  them  bv  Hnzrird. 

He  had  moreover  a  right  to  enter  for  tlie  pur])ose  of  looking 

for  the  goods  of  Clarkson.  It  is  in  the  possession  of  the  admi* 
Vol.  I.  v>  H 


2i2  CASES  IN  THE  SUPREME  COURT 

1808.     nistrator  that  such  goods  are  to  be  souglit;  and  as  this  circum- 
T,  '         ^stance  makes  his  entry  hwvful,  he  must  be  made  a  trespasser,  it 

IlAZAUD  •'  '  II-, 

V.         at  all,  by  subsequent  acts.   But  there  was  no  violence;  he  did  not 

Israel,    remove  or  touch  a  single  article  of  furniture;  he  merely  put  in  a 

claim  to  the  goods  for  the  sheriff,  and  then  departed.  It  cannot 

be  that  he  was  guilty  of  a  trespass  by  ^•ai/it}(f  that  he  made  a  levy, 

without  any  thing  further. 

2.  As  to  the  liability  of  the  sheriff.  It  was  incumbent  on  the 
plaintiff,  in  order  to  support  this  action,  to  shew  the  defendant's 
warrant  to  Suter  for  executing  this  writ;  which  was  not  done- 
The  sheriff  must  answer  for  the  acts  of  his  bailiff;  but  the 
particular  warrant  must  be  produced.  No  general  privity  be- 
tween them,  such  as  is  shewn  by  the  bailiff's  bond,  or  by 
his  acting  usually  as  such,  will  ansiver.  Drake  v.  Sykes.  («) 

The  defendant  immediately  rescinded  the  levy  made  hy  Suter; 
and  if  upon  notice  to  the  sheriff  of  bailiff's  misfeasance,  the 
property  is  instantly  restored,  no  action  of  trespass  will  lie.  It 
would  be  otherwise  if  there  was  a  special  command  by  the 
sheriff  to  the  bailiff  to  commit  the  trespass.  But  the  writ  is  a 
■warrant  to  do  that  only  which  is  lawful;  and  unless  the  sheriff 
recognises  the  unlawful  act,  he  is  not  answerable.  Here  the 
goods  were  not  touched,  and  the  levy  was  given  up  as  soon  as 
the  sherifT  had  notice  of  it.  Saunderson  v.  Baker  (h)  turns  upon 
the  sherifl  's  recognising  the  unlawful  act  of  his  bailiff;  and  Lord 
Chief  Justice  Dt  Grey  put  it  to  the  jury  expressly  "  That  if  they 
'*  were  of  opinion  that  the  sheriff  had  recognised  the  act  of 
"  Bolland^  they  ought  to  give  their  verdict  for  the  plaintiff;" 
which  they  accordingly  did,  and  said  "  they  were  of  opinion 
"  that  the  sheriff  had  recognised  the  act  oi  Bolland.^^ 

3.  The  damages  are  outrageous.  Suter  did  not  touch  an  ar- 
ticle but  the  chair  he  sat  on;  larael  rescinded  the  levy  on  the 
very  next  day;  and  the  jury  give  750  dollars  as  a  compensation 
to  the  feelings  of  the  plaintiff;  for  he  has  sustained  no  injury. 
Notwithstanding  the  case  of  Duberly  v.  Gunning  (c)  the  court 
may  certainly  grant  a  new  trial  for  excessive  damages  in  cases 
oitort.  yones  v.  Sparrows,  (d)  Diicker  v.  Wood,  (e)  If  there  be 
any  propriety  in  the  rule  of  Duberly  v.  Gunning-^  which  was  an 
action  for  crim.  con.,  it  can  be  only  in  application  to  such  a  case. 
The  damages  here  are  evidently  given  by  way  of  example;  and 

(a)7  D.iJfE.US  (c)  4  J),  is"  Ji.  651  (t)  1  D.tr  £.  277. 

•b)  3  WiU.  SO?.  <d)  SD.iS"  £.  257-  6  Bac.  Abr.  667. 


OF  PENNSYLVANIA.  04,3 

no  case  can  be  shewn  in  which  exemplary  damages  have  been      I8O8. 
supported  against  a  sheriff  for  the  act  oi  his  baihff,  in  an  action    „  ~ 

of  trespass  for  taking  property.   In  Lippincott  v.  Barker  sheriff         ^, 
oi  Philadelphia  county,  the  measure  of  damages  was  the  amount    Israel. 
sales  of  the  goods. 

Ingersoll  contra.  1.  There  cannot  be  a  doubt  that^u^^r  was 
a  trespasser.  The  costs  were  absolutely  paid;  and  the  sheriff 
attempts  to  save  himself  by  a  quibble,  when  he  returns,  that 
they  were  secured  to  him.  They  were  settled  by  Mr.  Reed;  the 
sheriff  positively  accepted  him  as  a  debtor  for  them;  they 
were  charged  to  his  account;  and  the  idea  of  security  was  an 
after  thought.  But  the  circumstance  was  also  communicated  to 
Suter  several  days  before  he  attempted  a  levy;  it  was  repeated 
to  him  at  the  time  of  levy,  and  there  was  no  pretence  of  igno- 
rance. He  even  levied  for  debt  and  costs;  and  after  taking  about 
eight  hundred  dollars'  worth  of  furniture  for  twenty  dollars 
costs,  he  still  asked  for  more. 

The  pretence  of  searching  for  ClarksorCs  goods  is  also  setup 
sint"--  the  fact.  He  did  not  ask  for  them;  the  parlour  of  the 
plaintiff  was  not  the  place  to  seek  them.  Though  he  may  have 
us;'d  no  violence  to  enter  the  house,  his  conduct  afterwards  was 
rude  and  insolent;  it  shewed  the  disposition  with  which  he  en- 
tered; and  although  a  man  whose  behaviour  is  civil  and  deco- 
rous may  enter  my  house  under  the  presumption  ot  general 
leave  given  to  persons  of  such  a  description,  yet  my  house  is 
mv  castle;  and  if  any  one  enters  it  to  disturb  my  family  and  to 
insult  and  offend  me  in  the  bosom  of  it,  he  is  a  trespasser  ab 
initio. 

2.  The  sheriff  is  liable  under  the  circumstances  of  the  case. 
There  is  no  necessitv  for  producing  a  warrant  to  Suter.  He  wa.s 
the  under  sheriff  and  not  the  bailiff;  bailill's,  such  as  are  known 
in  Evgland^  are  not  known  in  the  state  of  Pennsylvania.  The 
under  sheriff  is  the  ^ij-f/KTfl/ servant  of  the  sheriff;  the  bailiff  is 
his  servant  to  :i  particular  purpose;  hence  the  necessity  ol  shew- 
ing a  particular  warrant  to  the  latter,  while  proof  ot  :i  general 
privity  is  all  that  is  essential  to  establish  the  connexion  with 
the  former.    Drake  v.  Si/kes. 

The  defendant  did  not  rescind  his  levy  until  a  motion  was 
made  in  court,  and  (.h<\-  were  about  to  (<mip -1  him.  Hul  this 
fact  is  not  material;  the  slieriff  is  answerable  for  the  act  of  hiu 


2-1-4..  CASES  IN  THE  SUPREME  COURT 

180H.      bailiif  or  his  deputy  in  the  first  instance;  his  liability  does  not 
jj^j^^~"  depend  upon  his  subsequent  recognition  of  the  act;  and  so  is 
^..  the  hnv  in  England^  and  in  the  very  case  of  Saiinderson  v.  Ba- 

IsuAKL.  kcr  as  reported  in  2  //'.  Biack  832.  The  Chief  Justice,  according 
to  this  report,  put  it  to  the  jury  that  if  they  thought  the  sheriffs 
liad  recognised  BollancTs  act,  there  was  no  doubt;  "  and  if 
''  they  had  not.,  still  he  thought  the  sheriff  was  bound  by  the  act 
"  of  his  offic.r.s.''''  Go/z/r/ Justice  puts  this  case;  trespass  against 
sheriff  for  his  under  sheriff's  executing  on  I.  O.  'a  fi.  fa.  sued 
out  against  1.  S.  and  returning  mdla  bona  of  I.  S.;  and  a  recove- 
ry against  sheriff.  The  true  distinction  is,  did  the  officer  act  by 
colour  of  his  ivarrunt?  The  sheriff  and  all  his  substitutes  make 
but  one  officer;  and  in  Ackxvorth  v.  Kempe  (a)  in  which  Saun- 
derson  v.  Baker  came  before  the  court,  Lord  Mansfield  says  ex- 
plicitly that  "  for  all  civil  purposes  the  act  of  the  bailiff  is  the 
act  of  the  sheriff,"  and  that  IVilsori's  report,  that  the  case  turned 
upon  the  recognition  of  the  sheriff,  was  inaccurate. 

We  have  in  this  case  however  what  even  in  Wilson  was  con- 
ceded by  the  sheriff's  counsel  to  be  a  recognition,  a  return  of 
the  levy  by  the  defendant,  who  ipso  facto  acknowledges  the  of- 
ficer and  all  his  proceedings.   3  Wils.  311.  315. 

3.  As  to  damages.  No  doubt  the  court  has  authority  to 
grant  a  new  trial  for  excessive  damages.  It  depends  upon  the 
circumstances  of  the  case.  But  there  is  no  reason  why  a  sheriff 
should  answer  for  his  deputy  in  compensatory  damages,  that 
will  not  make  him  answerable  in  damages  of  any  other  kind; 
and  whether  or  not  in  a  case  of  such  unprovoked  insolence  and 
rudeness  as  this,  by  one  of  a  class  of  men  usually  unprincipled 
and  without  property,  the  court  will  order  anew  trial  in  conse- 
quence of  these  damages,  is  a  question  for  their  discretion.  It 
is  a  case  in  which  the  jury  have  asserted  in  the  person  of  the 
plaintiff,  the  mviolability  of  every  man's  house  while  he  lives 
in  obedience  to  the  laws.  Beardmore  v.  Carrington  et  al.  (b') 

T.  Poss  in  reply,  after  enforcing  the  arguments  for  the  de- 
fendant, was  proceeding  to  urge  the  distinction  between  a  ^ai- 
lijf  ixnd  an  under  sheriff;  but  Chief  Justice  Tilghman  said, 
"  The  case  of  Drake  v.  Sykes  shews  that  in  England  the  sherifl 
"  is  liable  for  his  known  deputy,  but  not  for  his  bailiff  without 
••'  warrant.  Now  we  have  no  such  officer  as  a  bailiff  in  this  state. 
"  Suter  vras  the  defendant'    known  deputy." 

'a)  Dou;r.  40  (b)  7  Wih.  244 


OF  PENNSYLVANIA.  245 

TiLGHMAN  C.  J.  after  stating  the  facts,  delivered  the  opinion      1808. 
of  the  court.  ~hI7a^ 

The  counsel  lor  the  defendant  in  support  of  their  motion  v. 
have  contended  that  there  was  no  trespass,  because  the  costs  Israel. 
were  only  seen re(/  and  not  paid;  and  because  even  it  tht;v  were 
paid,  the  officer  had  a  right  to  enter  the  house  to  look  for  goods 
oi  Clarkson;  and  after  he  was  in  he  committed  no  violence,  nor 
took  any  thing  away.  As  to  the  costs,  the  evidence  warrants  the 
plaintiff  in  saving  that  they  were  paid.  When  the  defendant  had 
agreed  to  look  to  Mr.  Reediox  them,  he  had  no  right  to  levy; 
and  so  the  defendant  himself  seems  to  think  in  his  return  to  the 
fi.  fa. ;  for  he  there  assigns  as  an  excuse  for  the  levy,  that  the 
deputy  was  not  informed  of  the  security  which  had  been  given. 
Then  as  to  the  entry  being  lawful  to  search  for  goods  of  Clark- 
son,  granting  that  to  be  the  case,  (concerning  which  however  no 
opinion  is  given)  the  subsequent  conduct  of  the  officer  in  levy- 
ing for  costs  when  none  were  due,  makes  him  a  trespasser.         >^ 

It  was  also  contended  that  the  sheriff  was  not  answerable  in 
an  action  of  trespass  for  the  conduct  of  his  deputy.  We  ai'e 
clearly  of  opinion  that  for  all  civil  purposes  he  is  answerable,^ 
though  not  criminally.  There  appears  to  be  some  doubt  on  the 
point  in  the  case  oi  Saimdcrson  v.  Baker  et  al.  reported  in  3  Wils. 
309;  but  the  doubt  is  probably  owing  more  to  the  inaccuracy  of 
the  report  than  to  any  other  cause.  The  same  case  is  better  re- 
ported in  2  IV.  Black.  832.  In  Ackxuorth  v.  Kempe,  Doug.  40. 
where  the  case  of  Saunderson  v.  Baker  et  al.  was  considered. 
Lord  Mansfield  looks  upon  the  law  to  be  quite  clear  in  the  man- 
ner I  have  stated  it.  It  is  a  principle  not  lately  introduced,  l)ut 
founded  upon  ancient  authorities.  And  most  inconvenient  it 
would  be  if  tlu;  law  were  otherwise;  for  the  sheriff's  deputies 
are  frequently  men  of  small  property,  and  sometimes  of  Ijad  cha- 
racter; and  the  responsibility  ought  to  rest  on  the  principal, 
who  has  the  sole  power  of  appointing  and  removing  them. 

The  last  reason  offered  for  a  new  trial  is,  that  tlie  damages 
are  excessive.  'J  his  is  tlie  only  point  on  which  there  could  be  a 
doubt.  A  distinction  has  been  taken  between  exemplary  da- 
mages, and  those  which  are  only  a  compensation  lor  the  injury 
sustained.  This  distinction  is  certainly  \\orthy  of  great  conside- 
ration by  a  jury,  when  a  principal,  who  has  been  no  way  to 
blame,  is  sued  for  the  conduct  of  his  deputy.  But  in  point  ol 
law  if  the  sheriff  is  answerable  at  :U1,  he  must  be  answerable  for 


t240  CASES  IN  THE  SUPREME  COURT 

1808.  such  damages  as  the  jury,  on  the  whole  circumstances,  think 
Haz  uuT  P'^P^^  to  give.  In  the  present  instance  they  have  given  exem 
7,.  plary  damages;  for  the  actuiil  injury  was  nothing.  They  have 
l3R  A  EL.  thought  it  a  necessary  check  to  rude  and  improper  behaviour  of 
the  sheriff  and  his  officers.  The  public  safety  requires  that  im- 
plicit obedience  should  be  paid  to  the  officers  of  justice  in  the 
execution  of  their  duty.  On  the  other  hand,  the  happiness  of  so- 
ciety requires  that  these  officers  should  be  influenced  by  pow- 
erful motives  to  avoid  all  acts  of  rudeness  and  wanton  injury. 
It  does  appear  that  the  quiet  of  the  plaintiff's  family  was  inva- 
ded at  a  very  unusual  hour  of  the  night,  without  just  causej  and 
it  also  appears  that  the  officer  gave  unnecessary  uneasiness  in 
the  course  of  transacting  the  business;  and  this  too  after  he  had 
been  warned  that  he  was  doing  wrong.  I  am  well  satisfied  from 
the  character  of  the  defendant,  that  he  was  not  accessary  to  this 
improper  behaviour.  From  the  view  which  I  have  been  able  to 
take  of  the  evidence,  (imperfect  to  be  sure  because  I  did  not 
hear  it  delivered  on  the  trial),  the  damages  appear  to  me  to  be 
severe;  but  as  the  jury  have  thought  proper  to  make  the  con- 
duct of  the  defendant's  deputy  an  object  of  public  example,  I 
cannot  say  that  I  think  them  so  altogether  wrong,  that  a  new 
trial  should  be  granted. 

New  trial  refused.     «<>  163I 

=  ^"1S3 


^f^'377l 


Lessee  of  Kyle  agamst  White  and  another. 

Saturdajf, 

January  2(J.  rr^HIS  cause,  which  was  an  ejectment  for  lands  in  MiJJiin 

An  improve-  ^  county,  was  tried  before  Judges  Yeates  and  Smith  upon 
mentmade    ^^  spring  circuit  of  1803,  and  a  verdict  found  for  the  plaintifl 

on  lands  not  .^,  r,  a  •  \     c 

purchased     agamst  the  charge  of  the  court.  A  motion  was  made  tor  a  new 

from  the  In-  ^j.jj^j  ^^j  ^  ^^^  jq  shew  cause  granted,  which  it  was  agreed  by 

dians,  does  ,  .  .  . 

not  vest  a      both  parties  should  be  argued  in  bank ;  and  accordingly  it  was 

title  from  its  j^^^^  argued  by  Watts  and  Duncan  for  the  defendants,  and  by 
A  survey  on  Dallas  and  C,  Smith  for  the  plaintiff.  The  case  and  the  argu- 
Td  a^f/i/W  '^^"^s  are  so  fully  stated  in  the  opinion  of  the  Chief  Justice, 

location  is      that  it  becomcs  unnecessary  to  make  any  additional  note  of 

good  against  , 

a  person  who '•"^"'• 

had  notice  of 

it  before  the  commencement  of  his  title,  even  thoiifrh  the  survey  was  not  returned.   It  it; 

no  objection  to  a  survey  made  before  the  year  1767  on  lands  purchased  from  the  Indian? 

in  1754,  that  562  acresi  wf-ro,  surscycd  upon  two  warrnnts  for  100  acres  each. 


White. 


OF  PENNSYLVANIA.  247 

TiLGHMAK  C.  J.  This  cause  was  tried  at  a  Circuit  Court  in      1808. 
Mifflin  county  in  May  1803,  before  Judges  Yeates  and  Smith,     t     . 
when  a  verdict  was  found  for  the  plaintiff.  A  motion  was  made         of 
for  a  new  trial;  and  it  was  agreed  by  the  counsel  on  both  sides      Kyle 
that  the  case  should  be  argued  in  bank. 

It  appears  that  in  the  year  1749  William  White  deceased, 
under  whom  the  defendants  claim,  was  settled  on  part  of  the 
land  in  dispute,  which  at  that  time  had  not  been  purchased  by 
the  proprietaries  of  Pennsylvania  from  the  Indians.  In  the  same 
vear  Richard  Peters^  secretary  of  the  land  office,  went  by  or- 
der of  the  government  with  some  magistrates,  to  turn  off  those 
persons  who  had  settled  on  the  unpurchased  lands  on  the  yuni- 
ata,  whose  residence  in  that  country  had  given  offence  to  the 
Indians.  White  agreed  to  move  offj  and  in  recompense  of  his 
submission  to  the  government,  Peters  promised  him  that  when 
the  land  should  be  purchased  by  the  proprietaries  from  the  In- 
dians, his  place  should  be  secured  to  him.  We  find  that  in  the 
year  1754,  before  the  purchase,  y antes  Kyle  was  settled  on  the 
tract  in  dispute,  not  far  from  the  improvement  of  White,,  and 
that  in  the  spring  of  the  year  of /iraaWoc/^'*  defeat  (1755)  he 
received  notice  o(  Whitens  claim.  The  proprietaries  made  a  pur- 
chase from  the  Indians,  including  this  land,  in  the  year  1754,- 
and  in  1755  the  land  office  was  opened  for  the  sale.  On  the  day 
of  the  opening  of  the  land  office  (3d  February  1755)  William 
nTf/fe- obtained  two  warrants  for  100  acres  each;  one  to  include 
his  improvement  on  which  Kyle  had  settled,  the  other  to  the 
northward  of  the  first  mentioned  tract,  and  to  include  part  of 
the  jB/^  Meadow.  On  the  28th  of  November  1760,  a  survey  of 
562  and  a  half  acres  was  made  for  White  by  William  Lyon  for 
Colonel  Armstronif,,  which  was  returned  into  the  surveyor 
general's  office  November  6th  1766.  In  1763  the  office  uf  Co- 
lonel Armstront;  was  burnt  and  all  his  official  papers;  wiiich 
probably  occasioned  the  delay  of  the  return  of  this  survey,  by 
leading  to  a  belief  that  it  was  destroyed  by  fire,  though  in  fact 
it  was  not. 

On  the  3d  June  1 762,  Kyle  took  out  a  warrant  for  100  acres 
adjoininir  William  JVhite,  and  not  making  any  mention  of  his 
own  improvimcnt;  he  had  entered  a  caveat  17lh  May  1762, 
against  White's  large  survey. 

In  July  1 765  the  dispute  between  Kyle  and  White  was  heard 
before  William  Peters,  secretary  of  the  land  office,  who  derided 


V. 

■White. 


248  CASKS  IN  THE  SUPREMi:  COURT 

1808.      that  after  William  White's  two  warrants  should  be  executed, 

■~^  ^and  accommodated  with  a  reasonable  and  full  share  of  the  sur- 

Lesscc 

of        vey  made  by  Ann.strong^  the  remainder  should  go  to  the  satis- 
Kyi.e      faction  of  Kijle^.s  warrant. 

October  23d  1765,  Kyle  took  out  another  warrant  for  200 
acres,  inchtdi7ig  his  iinprovemerU.,  to  pay  interest  from  1st 
3Iarch  1755. 

Jime  30th  1768,  Kyle  and  White  were  heard  before  the 
board  of  property,  who  decided  that  Kyle  should  have  225 
acres  out  of  White's  survey,  and  White  should  keep  the  remain- 
der. 

July  20th  1768,  two  surveys  were  made  for  Kyle  on  his  two 
warrants,  one  containing  106  acres,  the  other  111  acres. 

September  22d  1766,  Kyle  obtained  a  conveyance  from 
George  Gabriel;  but  it  does  not  appear  at  what  time  Gabriel 
was  settled  on  the  land. 

April  16th  1755,  William  White  conveyed  his  right  to  John 
Calhoun^  who  devised  to  his  wife  and  children.  His  son  John 
brought  an  ejectment  against  James  Kyle^  which  was  tried  in 
the  Court  of  Common  Pleas  of  Cumberland  county  (a)  April 
1770,  when  a  verdict  was  found  for  the  plaintiff.  Kyle  then 
brought  an  ejectment  against  Calhoun^  which  was  tried  at  Nisi 
Prius  May  1773,  and  a  verdict  found  for  the  defendant;  so  that 
two  juries  have  found  in  favour  of  the  title  of  White. 

It  appears  then  that  both  Kyle  a.r\d  White  claim  under  ancient 
improvements;  but  that  of  White  is  the  most  ancient.  Neither 
of  them,  however,  can  derive  title  from  the  date  of  their  im- 
provements, because  they  were  made  against  law,  on  lands  not 
purchased  of  the  Indians.  White  had  an  equitable  claim  under 
the  promise  of  Secretary  Peters,  which  the  proprietary  officers 
always  recognised.  White,  besides  having  the  advantage  of  this 
equity,  has  the  oldest  warrant  and  survey.  How  is  his  title  to 
be  impeached?  It  is  said  that  he  included  too  much  land  in  his 
survey,  and  that  one  of  his  warrants  called  for  the  Big  Mea- 
dow, which  is  a  mile  or  two  distant  from  his  survey.  It  is  also 
said  that  his  survey  was  not  returned  till  1766. 

The  delay  in  the  return  of  the  survey  is  well  accounted  for, 
by  the  burning  of  Colonel  Artnstrong^s  papers,  and  the  Indian 
war  in  which  he  took  a  veiy  active  part. 

(a)  Mifflin  county  was  erected  into  a  separate  county  by  act  of  Assembly 
19th  September  1789,  out  of  parts  of  Cumberland  and  Northumberland 
counties 


White. 


OF  PENNSYLVANIA.  M9 

In  considering  the  objection  as  to  the  quantity  of  land,  wc      1808. 
must  advert  to  the  time  when  the  survey  was  made.  If  made     x    ~ 
at  this  day^  the  objection  would  be  decisive.  But  in  the  year         of 
irOO,  when  it  was  made,  it  was  customary  to  include  much      Kyle 
larger  quantities  than  the  warrants  called  for.   It  was  not  till 
1767,  that  this  practice   was   altered  by  instructions  of  the 
Governor  to  the  surveyors.  Now  White  ought  not  to  stand  in 
a  worse  situation  than  others,  because  he  had  obtained  a  pro- 
mise from  Richard  Peters^  that  his  place  should  be  secured  to 
him;  and  what  strengthens  his  case  very  much,  is  that  his  sur- 
vey was  made  before  Kijle  took  out  his  warrant.   Kyle  too  had 
notice  of  Whitens  survey  before  he  took  out  his  warrants,  for  he 
entered  a  caveat  in  3Iay  1762.  This  circumstance  answers  the 
objection  that  the  survey  is  laid  partly  on  land  not  called  for; 
because  in  case  of  a  survey  on  a  shifted  location^  it  is  good 
against  a  person  who  had  actual  notice  before  the  commence- 
ment of  his  title,  even  although  the  survey  was  not  returned. 

It  is  of  great  consequence  that  there  should  be  uniformity  of 
decision  on  titles  to  land.  It  appears  to  me,  that  the  verdict  in 
this  case  is  contrary  to  those  principles  which  have  been  here- 
tofore established;  and  it  is  a  circumstance  of  considerable 
weight,  that  the  plaintiff  after  two  verdicts  and  judgments 
against  his  title,  acquiesced  for  the  length  of  seventeen  years, 
before  he  brought  the  present  action. 

I  am  of  opinion  there  should  l)e  a  new  trial. 

Yeates  J.  and  Smith  J.  concurred. 

Brackknridgk  J.  stated  the  titles  as  before,  and  then 
proceeded:  The  accommodation  of  settlers,  and  the  improve- 
ment of  the  country,  would  seem  to  have  been  the  early 
policy  of  the  proprietaries;  and  it  ajipears  in  the  usage  of  the 
office  in  granting  lands  in  small  quantities,  except  in  cases  of 
special  favour  for  special  reasons.  The  induliging  or  accepting 
surveys  for  more  than  the  quantity  in  the  warrant,  was  under 
the  idea  that  the  settler  was  not  able  at  once  to  take  out  a  war- 
rant for  more.  Where  the  warrant  was  not  taken  on  a  settle- 
ment, there  was  not  the  same  reason  to  call  for  the  inchilgence 
•f  the  proprietary. 
White  had  two  warrants  for  one  hundred  acres  each,  and 

there  would  be  good  reason  to  indulge  him  in  a  survev  of  three 
Vol.  1.  2  I 


250  CASES  IN  THE  SUPREME  COURT 

1808.      hundred  acres,  which  then  or  since  had  become  usual.  But 

~ here  were  five  hundred  and  sixtv-two  and  a  half  acres  surveyed, 

^r         that  is,  two  hundred  and  sixtv-two  and  a  half  beyond  what  the 

Kyle      warrants  called  for. 

^  T-  But  although  the  proprietary  might  indulge,  it  was  still  a 

^^^^'  bare  matter  of  indulgence  or  courtesy;  there  was  no  obligation 
so  to  do;  and  the  proprietary  agent  Peters-  in  1765,  and  the  pro- 
prietary^ board  of  property  in  1 768,  decided  against  the  indul- 
gence, and  restricted  him  to  a  quantity  which  would  leave  two 
hundred  and  twenty-five  acres  to  the  plaintiff.  The  verdict  in 
the  case  is  according  to  this  decision. 

It  is  reasonable  to  suppose  that  the  claim  of  Kyle,  who  had 
also  been  a  settler,  or  made  some  beginning  of  settlement,  and 
was  in  the  country  at  an  early  period,  was  the  ground  of  re- 
stricting the  survey,  which  might  otherwise  have  been  indulged. 
A  survey  of  three  hundred  acres  on  each  one  hundred  acre 
•warrant,  would  be  going  on  the  ground  of  two  improvements 
and  settlements,  which  was  the  case  here. 

I  feel  a  considerable  revulsion  at  the  conduct  of  a  settler,  who 
is  not  satisfied  with  defending  himself  against  an  Intruder  on 
bis  occupancy,  but  would  exclude  him  from  a  reasonable  vici- 
nage, engrossing  for  himself  more  than  he  could  pay  for,  and 
more  than  the  usage  of  settlement  would  support.  It  is  astonish- 
ing how  early  this  grasp  at  an  unequal  distribution  of  property, 
even  in  a  poor  man,  began  to  shew  itself. 

The  verdict  of  early  juries  has  great  weight  with  me,  but 
not  sufficient  to  outweigh  what  appears  to  me  very  strong  in 
this  case. 

I  would  have  left  the  motion  for  the  new  trial  to  the  Judges 
who  sat  on  the  trial;  or  at  least  would  have  been  less  willing  to 
sanction  the  verdict,  were  it  not  that  being  brought  before  the 
court,  though  in  the  way  of  a  concilium,  it  is  but  fair  to  the  par- 
ties that  my  way  of  thinking  be  understood;  in  order  that  they 
may  exercise  their  judgments  in  bringing  it  before  me,  or  put- 
ting it  off,  at  the  holding  of  the  nekt  Circuit  Court. 

Kule  absolute  1 


OF  PENNSYLVANIA  251 

1808. 


LivEZEY  and  others  against  Gorcas  and  others.      saturdav, 

if  if,'  January  2. 

X    HABEAS  Corpus  issued  from  the  Supreme  Court  at  the  An  assize  of 


•*-^  suit  of  the  defendants,  to  remove  this  cause,  which  was  an^^^^^^^^  ^^^ 


i.iiisance 

r<- 
assize  of  nuisance^  from  the  Common  Pleas  of  Philadelphia  mr>\.'d  fn.m 

the  Common 
county.  Pleas  to  the 

Lcxvin  for  tlie  plaintiffs,  now  moved  to  quash  the  writ,  for  Supreme 
two  reasons;   1.  Because  the  Supreme  Court  has  no  jurisdic- ^'^^^^ 
tion  of  an  assize.  2.   Because  a  habeas  corpus  is  at  all  events  Corpus. 
an  improper  writ  to  remove  an  assize. 

1.  As  the  Supreme  Court  has  at  this  time  no  original  juris- 
diction, the  plaintiffs  were  compelled,  even  if  we  disregard  the 
nature  of  their  suit,  to  institute  it  in  the  Common  Pleas;  and 
having  so  instituted  it,  it  must  be  left  there;  for  a  removal  of  it 
to  this  court  destroys  the  action.  In  an  assize  of  nuisance  the 
recognitors  must  have  a  view  before  the  return  of  the  writ,  and 
none  but  the  jury  which  has  had  the  view,  is  competent  to  try 
the  cause.  The  demandant  must  be  i-eady  to  count  ins  tauter 
upon  the  tenant's  demand,  and  the  tenant  is  to  plead  presently; 
if  he  pleads  in  abatement,  he  must  plead  over  at  the  same  time; 
for  the  cause  must  be  tried  at  the  return  of  the  writ  and  not  after, 
as  it  IS  festinum  remedium.  The  Supreme  Court  cannot  hold 
the  trial  at  the  return  of  the  writ  in  the  Common  Pleas;  and  the 
jurv  which  alone  can  try  the  cause,  cannot  be  brought  into  the 
Supreme  Court.  It  follows  therefore  that  the  jurisdiction  fails 
for  want  of  a  jury  competent  to  the  trial,  and  because  the  Su- 
preme Court  cannot  possibly  arraign  the  assize  in  that  period 
in  which  by  the  rule  of  law  it  must  be  done.  1  Bac.  251. 
Savier  v.  Linthall  (o),  Saveris  v.  Briggs.  (^) 

The  court  wants  jurisdiction  for  another  reason.  There  arc  no 

words  in  any  law  to  give  them  authority  to  take  assizes;  and  ihcy 

have  no  special  commission  to  do  it.   One  ol  these  is  essential. 

The   Common   Pleas  have  the  power  in  express  terms.  1  St. 

Laws  182.  sec.  21. 

2.  A  habeas  corpus  is  an  improper  writ.  An  assize  is  a  real 
action  which  cannot  l)i  removed  b)-  habeas  corpus.  This  writ 
removes  the  body  with  the  cause;  and  lies  only  where  the  pro- 

vcding  is  in  personam.  It  dors  not  lie  in. ejectment,  replevin 


■25:2  CASES  IN  THE  SUPREME  COURT 

1608.      or  in  any  real  action  whatever.  It  is  particularly  inadequate, 
~L^^r^^"^~  because  it  cannot  bring  up  that  jury  which  alone  can  try  the 
V.         cause;  and  its  eflect  is  to  abate  a  rightful  suit.   3  B I.  Co7nm.  130. 
CioROAs.   jj^  184.  Hetlicring-ton  v.  Rcijnolds.  («) 

Raxvle  for  the  defendants. 

1.  By  the  constitution  of  the  Supreme  Court,  it  has  power 
to  issue  writs  oi  habeas  corpus^  certiorari^  error ^  and  all  other  re- 
medial writs  and  process;  it  has  authority  to  hear  and  determine 
all  and  all  manner  of  pleas,  plaints,  and  causes, removed  from  the 
Courts  of  Common  Pleas;  and  it  may  exercise  the  jurisdictions 
and  powers  granted  to  it,  as  fully  as  the  Courts  of  King's  Bench, 
Common  Pleas,  and  Exchequer,  at  Westminster.  1  St.  Laws 
180.  sev.  13.  Under  this  gi-ant  of  jurisdiction  it  has  sustained 
removals  of  dower,  partition,  and  waste,  which  are  real  actions; 
and  there  is  nothing  in  an  assize  which  particularly  exempts  it 
from  the  jurisdiction  of  this  court.  It  is  not  expressly  within 
die  court's  power;  and  why  should  it  be,  if  general  terms  will 
reach  the  case?  But  if  it  is  within  the  authority  of  the  Com- 
mon Pleas,  it  is  necessarily  within  that  of  the  Supreme  Court, 
which  has  an  unlimited  power  of  removal,  confirmed  by  a  par- 
ticular section  of  a  subsequent  law,  in  every  case  in  which  title 
to  lands  or  any  other  real  estate  7nay  come  into  question.  1  St. 
lMxvsA:79.sec.4!.  An  assize  is  perhaps  still  more  evidently  within 
the  jurisdiction  of  this  court  than  dower,  waste,  or  partition;  for 
while  these  are  confined  to  the  Common  Pleas  at  IVestmiiistery 
that  may  be  brought  either  there  or  in  the  King's  Bench.  3  Bl. 
Comm.  40.  I  grant  that  recognitors  must  have  a  view  before  the 
return,  and  that  the  same  jury  must  try;  but  this  is  no  ob- 
stacle to  the  removal.  It  is  not  absolutely  necessary  to  finish 
the  assize  at  the  return  of  the  writ.  The  justices  will  give  a 
day  out  of  term  for  reasonable  cause.  F.  N.  B.  409, — 10.  An 
imparlance  may  be  granted  for  good  cause,  Saveris  v.  Brtggs; 
(jbj  and  the  assize  may  be  adjourned,  or  removed  to  a  supe- 
rior court.  1  Com.  Dig.  567^ — 8.  Assize  B.  21.  25.  27.  28. 
2  Inst.  423. 

2.  Habeas  Corpus  is  a  proper  writ.  It  does  not  suppose  any 
actual  imprisonment;  since  in  England  it  lies  to  every  inferior 
court,  and  in  cases  where  the  sum  in  controversy  does  not  au- 

(a)  1  Sa//.  fe  {b)\  Salk  83 


OF  PENNSYLVANIA.  253 

thorize  an  arrest  and  there  is  no  bail.  It  issues  it  is  true  in  cases      1 808. 
which  concern  the  person;  and  such  is  an  assize  of  nuisance;  for   i^^y^^j,^ 
the  plaintiff  may  recover  damages  in  the  action,  and  have  a  ca.        'v. 
sa.  against  the  defendant  to  recover  them.  By  an  act  passed   Goiigas. 
March  20th  1799,  the  record  itAcIf  is  removed  by  habeas  cor- 
pus in  like  manner  as  by  certiorari;  so  that  if  the  cause  can  be 
removed  by  either  writ,  it  may  be  removed  by  that  which  has 
been  adopted;  and  in  the  case  of  Hartman  v.  Weiser,  December 
1795,  which  was  a  writ  of  dower  removed  by  habeas  corpus 
from  the  Common  Pleas  oi  Berks  county  to  this  Court,  we  have 
an  instance  of  its  adoption  in  a  real  action. 

Lewis  in  reply; 

Mr  Raivle  grants  that  the  same  jury  which  views  must  try; 
but  he  docs  not  shew  how  they  are  to  be  brought  into  this 
court.  The  Supreme  Court  has  no  authority  by  act  of  Assem- 
bly to  take  an  assize,  nor  have  the  judges  by  virtue  of  their 
commissions.  The  justices  of  B.  R.  have  a  special  commission 
to  take  assizes;  they  do  not  take  them  ex  officio;  and  when  on 
their  circuit  an  assize  is  taken,  and  adjourned  into  bank,  though 
it  be  the  same  court,  it  is  so  adjourned  by  virtue  of  a  statute. 
There  is  no  instance  of  the  King's  Bench  having  issued  either 
habeas  corpus  or  certiorari  to  an  inferior  court  to  remove  an 
assize  of  nuisance. 

TiLGHMAN  C.  J.  The  court  do  not  think  it  necessary  to  de- 
cide whether  or  not  they  have  jurisdiction  of  an  assize  of  nui- 
sance; but  they  are  clearly  of  opinion  that  such  an  action  can- 
not be  removed  into  this  court  by  a  writ  oi'  habeas  corpus;  it  has 
not  been  customary,  and  it  is  not  proper,  to  remove  a  real  action 
by  this  kind  of  writ.   For  this  cause  only  they  allow  the  motion. 

Habeas  Corpus  quashcrl. 


12.14  CAbES  IN  rHE  SUPREME  COURT 

1808. 


>i;.*i.  ■ 


Frazer  against  Tunis  and  another  administrators  of 

Jaiuiaiv  2.  TA 

JJUN  WOODY. 


A  claim 


IN  this  cause  it  was  agreed  that  iudement  should  be  entered 
? 
uiicaiavc  »  lov  thc  amount  due  from  the  intestate   to  the  plaintiff;  and 

danvfo-'^'^o     ^^^^  upon  the  question  arising  under  the  plea  of  want  of  assets, 
account  of    a  case  should  be  submitted  to  the  court,  which  in  substance  was 

the  breach     ^^  follows: 

ot  articles  ot 

aijreement         On  the  25th  Au£-ust  1 794,  yohn  Dumvoody  and  Charles  Dil- 

i'"'  d  bt  b    ■^^'^'■''''  filtered  into  articles  of  agreement  under  seal  with  Tho- 
specialty       vias  Ritston^  by  which  they  covenanted  to  convey  to  him  a 
mean?n    '^f    qi^^i^tity  of  ^^"d  at  a  Stipulated  price.  Rusto7i  covenanted  to  pay 
the  14th  sec- the  price,  and  in  part  performance  paid  on  this  agreement  5864 
act"oa9th     dollars.  On  the  I'th  September  1794,  the  same  parties  entered 
April  1794.  into  other  articles  wider  seal  with  the  same  covenants;  and  Rus~ 
ton  on  this  agreement  paid  3250  dollars.  Ruston  assig-ned  to 
Harrison;  Dunwoody  and  Dihvorth  did  not  perform  their  co- 
venant; and  an  action  was  brought  upon  the  last  article  in  the 
name  of  Ruston  for  the  use  of  Harrison  to  March  1797  in  this 
court.  Pending  the  action  Dihvorth  died,  and  Dumvoody  and 
the  plaintiff  then  referred  the  cause  under  a  rule  of  court;  but 
before  any  award,  Dunwoody  also  died,  and  the  defendants  were 
substituted  as  his  administrators;  after  xvhich  the  referees  re- 
ported for  the  plaintiff  15467  dolls.  22  cts.  and  judgment  there- 
upon was  duly  entered. 

In  1792  Dumvoody  entered  into  other  articles  under  seal 
with  M.  Slough  and  H.  Downing^  for  establishing  a  line  of  sta- 
ges from  Philadelphia  to  Lancaster  in  partnership.  In  these 
articles  there  were  covenants  to  account  for  and  pay  over  the 
receipts  &c.  and  under  these,  Doxvning  claimed  a  balance  from 
Dunwoody  to  a  large  amount. 

The  question  submitted  to  the  court,  was  whether  the  monies 
claimed  under  the  said  articles  of  agreement,  or  anj'  of  them, 
were  debts  by  specialty  within  the  meaning  of  tho  14th  section  of 
the  act  of  19th  April  1794,  which  is  as  follows: 

"  That  all  debts  owing-  by  any  person  within  this  state  at  the 
"  time  of  his  or  her  decease,  shall  be  paid  by  his  or  her  execu- 
"  tors  or  administrators,  so  far  as  they  have  assets,  in  the  man- 
"  ner   and  order  following:  First,  physic,  funeral  expenses. 


OF  PENNSYLVANIA.  255 

*' and  servants'  wages.  Second^  rents  not  exceeding  one  year.      1808. 
*'  TAir^i,  judgments.  /'oz/rM,  recognisances.  i^j/?A,  bonds  and    Fhazeii 
*'  specialties;  and  that  all  other  debts  shall  be  paid,  without  re-         v. 
'•'•  gardto  the  quality  of  the  same,  except  debts  due  to  the  com-      ^  t'Nr«. 
"  monwealth,  which  shall  be  last  paid.  But  if  there  shall  not  be 
"  assets  sufficient  to  discharge  and  pay  such  bonds  and  special- 
"  ties  and  other  debts,  then  and  in  such  case  the  same  shall  be 
"  averaged,  and  the  said  creditors  paid  pro  rata,  or  an  equal 
"  sum  or  proportion  in  the  pound  as  far  as  the  assets  will  ex- 
*'  tend,  first  paying  the  bonds  and  specialties  aforesaid."  3  St. 
Laws.  521. 

The  arguments  upon  the  case  were  confined  principally  to  the 
claim  oi  Ruston;  that  of  Dorvning  being  more  evidently  within 
the  act  of  Assembly. 

Frazer  for  the  plaintiff,  (a)  These  claims  are  not  debts 
by  specialt}'  within  the  meaning  of  the  section  referred  to. 
Ruston's  certainly  is  not.  At  the  time  of  Dunwoodif  s  death 
it  was  a  claim  for  unliquidated  damages,  which  had  no  fixed 
and  established  measure  in  law;  a  position  made  the  iTK)re  evi- 
dent bv  the  report  of  referees,  who  have  awarded  more  than  the 
principal  and  interest  of  all  that  had  been  paid  by  Ruston  on 
both  articles  of  agreement,  though  the  action  was  only  on  the 
second  article  of  17th  September  1794. 

Cases  arising  under  the  statutes  of  set-ofF  in  England  are 
analogous.  The  statute  of  2  Geo.  2.  c.  22.  enacts  that  where  there 
arc  mutual  debts  between  the  plaintiff  and  defendant,  one  debt 
may  be  set  against  the  other;  and  the  established  construc- 
tion of  that  term  should  govern  the  construction  of  an  act  of 
Assembly  in  which  it  is  used  with  equal  emphasis.  Such  a 
claim  as  this  cannot  lie  set  off.  You  cannot  set  off  unliqui- 
dated damage;  Freeman  v.  I/i/ett  (b)^  nor  the  penalty  of  ar- 
ticles of  agreement,  which  is  stronger  than  this  case.  Nedriffe 
V.  Hainan,  (c)  Debts  to  be  set  off  must  be  such  as  indebitatus 
assumpsit  will  lie  for.  Iloxvlet  v.  Strickland,  (jcl) 

(rt)  In  (his  case,  the  Court  determined  to  relax  Uic  rule  of  hearing  only 
two  counspl  on  a  side,  as  there  were  other  [)ersons  interested  hcside  tlic  par- 
ties on  record,  wlo  had  af^rccd  to  be  bound  by  tlie  decision  in  this  cause. 
Hut  the  benefit  of  this  relaxation  was  aftenvards  waived  by  counsel 

(/<)   1  W.  Black.  394  (d)  Co-^vp.  5f^ 

fr')    2  R:,rr   10?4 


256  CASES  IN  THE  SUPREiME  COURT 

1808.  ^^^  have  the  true  definition  o{  debts  by  specialty  in  2  Bl. 

~T.  Comm.  465:  they  "  are  such  whereby  a  sum  of  money  becomes, 

^,  "  or  IS  acknowledged  to  be,  due  by  deed  or  mstrument  under 

Tims.     "  seal;"  a  definition  adopted  in  this  state  in  the  case  oi  January 

V.  Goodman^  {a)  before  the  act  of  1794  was  passed;  and  to  be 

presumed  the  sense  in  which  the  same  words  are  intended  bjr 

the  legislature. 

RustorCs  claim  moreover  is  not  founded  barely  on  the  arti- 
cles, but  on  Dunrvoody  not  having  performed  the  facts  in  the 
articles;  the  specialty  is  but  mere  inducement  to  the  action;  and 
matter  oi  fact  is  the  foundation  of  it;  and  therefore  the  claim 
cannot  be  considered  as  a  debt  by  specialty.  Warren  v.  Co7i' 
sett,  {b) 

Leruis  on  the  same  side  cited  Radcli^e^s  case  (c)  to  shew  that 
the  legal  sense  of  the  word  debt  must  be  presumed  to  have  been 
intended. 

Rarvle  contra,  contended  that  the  creditors  under  the  articles 
of  agreement  had  at  the  time  of  Dvnwoodifs  death,  a  cause  of 
action  founded  on  a  specialty;  and  although  he  agreed  with 
Radcliffe's  case,  that  the  judges  were  not  "to  lay  aside  the  legal 
"  sense  of  a  law,  and  run  about  to  find  the  meaning  in  which  it 
"  is  received  by  rustics  and  plebeians,"  yet  it  was  by  the  legal 
meaning  of  the  terms  "  debts  by  specialty,"  as  intended  by  the 
act,  that  the  claims,  he  said,  were  embraced,  and  therefore 
there  was  no  necessity  of  resorting  to  the  common  understand- 
ing upon  the  subject. 

The  distinction  applicable  to  this  act  is  not  between  debt,  a 
sum  certain  and  ascertained^  and  damages,  to  be  assessed  for 
breach  of  contract^  but  between  demands  ex  contractu^  and  de- 
mands ex  delicto.  If  a  party  claimed  damages  for  a  tort^  the 
plaintiff's  objection  would  be  well  founded;  the  intestate  at  the 
time  of  his  death  owed  him  no  debt;  but  he  that  claims  upon 
the  foundation  of  a  contract  is  a  creditor  of  the  intestate;  and  his 
claim  must  necessarily  be  a  debt.  The  true  question  under  the 
act  is,  could  an  action  lie  against  the  administrators? 

r«)  1  Ball.  208. 

(//)   2  Lord  PayA^Q^. 

C<)  1  Stra.  278. 


OF  PENNSYLVANIA.  237 

These  claims  are  debts  by  specialty:   1st,  Because  in  that      1808. 
country  from  which  we  derive  our  laws,  and  whose  provisions  "TT"  ~ 

in  this  respect  must  have  been  in  the  eye  of  the  legislature,  they         ^^ 
have  been  uniformly  recognised  as  such.   2d,  Because  if  they     Tuvis. 
are  not  debts  bv  specialty,  there  is  no  class  of  debts  in  the  act 
under  which  they  can  rank;  and  they  must  therefore,  contrary 
to  all  reason,  be  rejected  altogether. 

1.  In  laying  down  the  order  in  which  an  executor  or  admi- 
nistrator must  pay  the  debts  of  the  deceased.  Sir  JV.  Blackstone 
ranks  in  the  fifth  class,  "  debts  due  by  special  contracts,  as  for 
'■'■  rent,  or  upon  bonds,  covenants^  or  the  like,  under  seal."  2  Bl. 
Comm.  511.  The  authority  cited  for  this  position  is  Wentxvorth 
Ch.  12.  and  the  words  of  the  author  are  completely  in  point  to 
the  present  question.  "  Now  between  a  debt  by  obligation,  and 
''  a  debt  for  rent  or  damages  upon  a  covenant  broken,  I  con- 
''  ceive  no  difference,  nor  any  priorit}'  or  precedency."  Wentw. 
Off.  Ex.  146.  And  if  a  doubt  can  be  raised  upon  the  language 
of  this  authority,  it  must  be  terminated  by  Godolphin^  uho  says 
"  between  a  debt  by  oI)ligation,  and  a  debt  for  datnages  upon  a 
''  covenant  broken^  there  is  not  any  priority  or  precedency." 
Godol.  Orp.  Leg.pl.  2.  ch.  28.  p.  220.  Doc.  and  Stud.  Dial.  2. 
•  h.  10.    2  Foiibl.  408. 

Money  agreed  by  marriage  articles  to  be  invested  in  purchase 
of  lands, — covenantor  dies  without  having  performed  his  cove- 
nant,— it  is  a  debt  by  specialty;  for  an  agreement  under  hand  and 
seal  by  deed  is  a  covenant,  and  consequently  a  spccialtif.  Ben- 
ron  V.  Benson.  (<?)  There  is  no  other  definition  of  a  specialty 
debt,  but  that  it  is  under  seal.  GifJord\.  Manleij^  (b)  Bunn  v. 
Gil  If.  (c) 

The  grantor's  covenant  for  him  and  his  heirs  in  a  marriage 
settlement,  that  the  premises  were  free  from  incumbrances,  shall 
come  in  equally  with  creditors  on  hand.  J^ariicr  v.  Harvvij.  (d') 

We  have  then  the  authority  of  approved  writers,  and  the  de- 
cisions of  courts,  that  this  kind  of  claim  is  treated  in  England 
as  a  debt  for  damages  upon  a  covenant  broken;  and  with  these 
before  their  eyes,  it  cannot  be  that  the  legislature  has  in  a  pa- 
rallel case  intended  the  word  debt  in  a  more  limited  sense.  In 
relation  to  the  subject  matter  of  the  law,  this  comprehensive 
sense  is  the  true  legal  meaning  of  the  woid. 

(rt)   \P.  Wms.  1.50.  (c)  4  luut.  190. 

(A)  n,n.tr,„f,.  r.,\!.  100  (,/)  4  /ja;,;,.,  ;->.  irtw.  3oa 

Vol.  I.  2  K 


258  CASES  IN  THE  SUPREME  COURT 

1808.  The  statutes  of  set-off  and  cases  uncl«"r  them,  do  not  apply. 

Fkazer     ^^  '''  impossible   to  shew  the  mtai\ing  of"  terms  used  in  one 

X'.         statute,  by  shewing  what  they  mean  in   another  totalb;   dis- 

lUNis.     similar  in  its  object.    The  case  of  Nedr'fjfe  v.    Hoiran^  cit*  d 

by  jVIr.  Frazer^  clearly  proves  this.  Will  it  be  contended  that 

articles  of  agreement   under  seal,  with  a  penaltij  in  money, 

do  not  constitute  a  debt  by  specialty  under  this  act.'  Yet  such  a 

debt  is  not  within  the  statutes  of  set-off. 

But  it  is  said  that  in  this  case  the  articles  of  agreement  are 
mere  inducement;  and  that  matter  of  fact  is  the  foundation  of 
it;  of  course  there  is  no  debt  bij  specialty.  But  in  the  first  place 
Warren  v.  Consett  turned  exclusively  upon  a  question  ol  plead- 
ing; and  the  judgment  was,  that  where  the  deed  was  but  in- 
ducement, and  the  foundation  matter  of  fact,  nil  debet  was  a 
good  plea;  as  in  debt  for  rent  by  indenture^  becaiiHe  the  plaintiff 
need  not  set  out  the  indenture  in  his  declaration.  But  where 
the  deed  was  the  foundation,  and  fact  the  inducement,  «i/f/<'Ae< 
■was  no  plea.  Now  take  it  in  the  best  manner  for  plaintiff, 
is  rent  due  b\'  indenture  any  the  less  a  debt  by  specialty^  be- 
cause nil  debet  may  be  a  good  plea  to  an  action  of  debt  for  it? 
But  in  the  next  place,  the  very  action  in  the  case  cited  was 
debt  upon  a  covenant  to  pay  a  certain  sum,  in  case  the  di'fen- 
dant  did  not  transfer  to  plaintiff  twenty  five  shares  in  the  Welsh 
copper  mine  company;  and  the  court  held  that  the  articles 
were  the  foundation,  and  the  fact  of  not  transferring  but  mere 
inducement;  and  therefore  nil  debet  no  plea. 

2.  If  these  claims  are  not  debts  by  specialty,  w^hat  are  they? 
They  certainly  do  not  come  within  any  of  the  first  four 
classes;  and  if  they  are  comprehended  under  the  sweeping 
description  of  "  all  other  debts^  without  regard  to  the  quality 
"  of  the  same,"  there  is  a  difficulty  at  the  threshold,  which  if 
removed,  must  carry  away  with  it  the  onlv  objection  to  our 
coming  under  the  fifth  class.  For  surely  it  cannot  stand  among 
other  debts ^  unless  it  be  a  debt;  and  if  it  be  a  debt  so  as  to  be 
included  by  the  swi  cping  clause,  it  is  impossible  to  deny  that 
when  coupled  with  its  origin,  a  writing  und'/r  seal,  it  is  a  debt 
by  specialty.  There  is  no  alternative  then,  but  to  argue  that  this 
is  a  contract  upon  which  the  administrators  are  not  compellable 
by  law  to  pay  any  thing. 


OF  PFNN'^YLVANIA.  259 

Letvis  in  reply.  Words  used  by  vulgar  people  are  to  be  un-      1808. 
derstood  according  to  their  usual  signification;  when  they  are    Phazer 
used  in  pleading,  thev  are  to  b-  understood  technically;  and  v. 

when  a  word  of  a  fixed  legal  meaning  is  used  by  the  legislature,  Tunis 
it  must  be  understood  in  that  sense,  unless  it  be  accompanied 
bv  such  explanations  as  evidently  shew  another  sense  to  have 
been  intended.  It  is  for  this  reason  that  cases  under  the  statutes 
of  set-off  do  apply  with  great  effect  to  the  cjuestion  before  the 
court;  for  they  ascertain  the  legal  meaning  of  the  term  debt, 
when  used  bv  the  legislature;  and  as  there  are  no  explanatory 
words  in  this  act  to  give  the  same  term  either  an  enlarged  or 
a  restricted  sense,  the  same  meaning  must  be  implied,  as  a 
necessarv  consequence. 

But  the  cases  cited  by  Mr.  Rcnvle  do  not  apply.  The  rule  of 
the  civil  law  puts  specialties  upon  the  same  footing  with  bonds, 
having  a  regard  simply  to  the  instrument;  whereas  our  act  of 
Assemhlv  not  onlv  demands  that  there  be  a  specialtij^  but  that 
there  also  be  a  deht  due  and  owing  by  specially.  These  circum- 
stances must  both  concur  to  bring  the  demand  ot  Ruston  wiihin 
the  fifth  class  of  debts;  and  although  we  concede  that  here  is  a 
specialtif^  we  deny  that  at  the  time  of  Dunwoccfifs  death  there 
was  a  debt  due  and  owing  by  him  to  Ruston^  but  simply  a 
demand  on  the  part  of  the  latter  tf  r  unliquidated  damages. 

1.  As  to  the  meaning  of  the  term  debt.  In  legal  acceptation  it 
is  a  sum  of  money  due  by  certain  and  express  agreement;  as  by 
a  bond  for  a  determinate  sum,  a  bill,  or  note  Sec;  where  the 
<|uantitv  is  fixed  and  specific,  and  does  not  depend  upon  any 
subsequent  valuation  to  settle  it.  3  Bl.  Comm.  154.  Damages 
on  the  contrary  are  uncertain.  The  plaintiff  has  no  certain  de- 
mand till  after  verdict;  and  they  are  ranked  by  Rlackstone 
imder  the  head  of  property  acf/uired  by  suit  and  judgment  at 
law.   3  BI.  Co  vim.  438. 

2.  As  to  iMr.  A'rtw-'/^'*  authorities.  There  is  no  question  that 
■A  covenant  to  pay  a  sum  certain  is  Tidcht  by  specialty;  and  there 
is  nothing  in  2  Bl.  Comm.  511.  to  shew  that  this  was  not  the 
kind  of  covenant  intended.  The  language  implies  thiit  it  was, 
as  the  commentator  says  "  debts  due  on  spec  ial  contracts,  or 
"  up«}n  bonds,  covenants,  and  the  like  under  seal,"  and  the  au- 
thority cited  iiy  Blitckstone,  merely  shews  that  it  was  the  instru- 
vtent  which  the  law  regarded,  as  IVentivorth  considers  "  a  debt 

bv  obligation,  a  debt  for  rent,  or  damages  for  a  covenant  bro- 


0(30  CASKS  IN  THE  SUPREME  COURT 

1808.      "  ken,"  as  having  an  equal  pretension  one  to  the  other.   Off. 

pj^^y^,^    Exec.  146.    The  passage  from  Godolphm  is  to  the  same  pur- 

V.         pose;  one  is  the  transcript  of  the  other.   It  cannot  be  a  matter 

Tunis,     of  consequence  whether  the  claim  be  debt  or  damages,  where 

the  only  inquiry  is  whether  the  instrument,  under  which  they 

accrue,  is  or  is  not  a  specialty. 

Benson  v.  Bmson  was  clearly  a  debt  by  specialty.  The  trustee 
had  money  in  his  hands  which  he  neglected  to  appropriate  ac- 
cording to  his  covenant,  and  died. 

Parker  v.  Harvey  is  a  loose  note  to  be  found  only  in  Burn; 
iind  it  does  not  appear  whether  the  covenant  was  a  general  one, 
or  whether  there  was  a  penalty. 

3.  As  to  the  class  under  which  this  claim  falls.  It  is  proba- 
ble that  it  must  come  under  the  general  clause.  The  clause 
however  is  obscure;  for  if  the  phrase  "  without  regard  to  quali- 
•■'  ty"  refers  to  rank^  it  seems  to  be  useless,  as  all  below  special- 
ties are  of  the  rank  of  simple  contracts  ;  it  is  most  reasonable  to 
presume  that  all  that  remained  to  be  specified,  are  to  be  includ- 
ed in  this  comprehensive  clause,  without  regard  to  their  being 
secured  by  specialty  or  otherwise. 

TiLGHMAN  C.  J.  delivered  the  opinion  of  the  court. 

This  case  comes  before  the  court  on  a  case  stated  for  their 
opinion. 

John  Dunwoody  undCharles  Dihvorlk,  both  deceased,  enter- 
ed into  articles  of  agreement  under  hand  and  seal,  with  Thonia^ 
Ruston  deceased,  by  which  they  covenanted  to  sell  and  convey 
to  him  a  quantity  of  land  at  a  stipulated  price.  Ruston  paid 
several  sums  of  money  on  account  of  this  purchase,  but  Dun- 
-woody  and  Dihvorth  failed  in  making  the  conveyance.  Ruston 
brought  an  action  of  covenant  on  the  articles  of  agreement 
against  the  administrators  of  Diinzuoodyy  which  was  submitted 
to  referees,  who  awarded  15467  dolls.  22  cts.  to  the  plaintiff  in 
that  action.  Dunwoody  also  entered  into  other  articles  of  agree- 
ment under  seal  ^vith  Matthias  Sloui^h  and  Hunt  Doivning^  for 
establishing  a  line  of  stages  between  Philadelphia  and  Lancas- 
ter; for  a  breach  of  which  articles  Doxvning  claims  a  considera- 
ble sum  from  the  estate  oi  Dunrvoody.  That  estate  is  insufficient 
for  the  payment  of  all  the  demands  against  it;  and  the  question, 
now  submitted  to  the  court,  is  whether  the  claims  under  the 
sajd  agreements  are  to  be  considered  as  debts  by  specialty. 


O  l"  P i: N X S  YI  A'  A N I A ,  261 

Viithin  the  meaning  of  the  14th  section  of  the  act  of  Assembly       1808. 
of  19th  April  1794,  entitled  ^'  An  act  directing  the  descent  o^  "jT^^Tzer" 
intestates'  real  estates"  &c.  r. 

The  act  of  Assembly  declares  that  "  all  debts  ovv  ing  by  eve-  Tcn'is. 
"  ry  person  within  this  state  at  the  time  of  his  death,  shall  be 
^  paid  by  his  executors  or  administrators  so  far  as  they  have 
*' assets,  in  the  manner  and  order  following:  1.  Physic,  fune- 
"  ral  expenses,  and  servants'  wages.  2.  Rents  not  exceeding 
"  one  year.  2>.  Judgments.  4.  Recognisances.  5.  Bonds  and 
"  specialties;  and  all  other  debts  shall  be  paid  without  regard  to 
"  the  quality  of  the  same,  except  debts  due  to  the  Common- 
*•■  wealth,  the  which  shall  be  last  paid." 

It  is  not  denied  by  the  plaintiff's  counsel  that  the.se  articles 
of  agreement  are  specialties;  because  they  are  writings  under 
seal^  which  is  the  true  defmition  of  a  specialty.  But  they  con- 
tend that  in  order  to  be  ranked  in  the  5th  class,  it  is  necessary 
that  they  should  be  debts  as  well  as  specialties^  which  they  sav 
they  are  not,  because  at  thu-  time  of  the  intestate's  death  they 
were  only  claims  for  unliquidated  damages.  There  is  no  doubt 
but  the  word  debt  is  frequently  understood  as  a  sum  of  monev 
reduced  to  a  certainty,  and  distinguished  from  a  claim  for  un- 
certain damages;  and  in  this  sense  it  has  been  taken  in  the  con- 
struction of  the  British  statutes  authorizing  a  set-oft",  where 
there  are  mutual  debts  between  plaintiff  and  defendant,  liut  the 
question  is  whether  it  has  not  been  used  in  a  more  extensive 
sense,  and  if  so,  whetlier  it  will  not  best  answer  the  intent  of 
the  act  of  Assembly  to  construe  it  in  its  most  enlarged 
signification. 

When  the  legislature  undertook  to  lay  down  a  rule  for  the 
direction  of  executors  and  administrators  in  the  payment  of 
assets,  it  must  be  supposed  that  it  was  their  intent  to  direct 
them  in  all  cases^  and  not  to  leave  a  number  of  important  claims 
totally  unprovided  for.  It  was  well  known  that  demands  fre- 
quently occiu*  both  of  the  nature  of  specialty  and  simple  con- 
tract, wiii(  h  are  not  debts  in  iht-  sense  contended  for  by  the 
plaintiff's  counsel;  and  yet  there  is  no  description  of  claim  in 
the  act,  other  than  a  drb/.  It  must  likewise  be  supposed  that  the 
legislature  turned  their  attention  towards  those  bocjks  and  those, 
courts  in  E/ir^-iand,  which  treat  and  take  cognisance  of  tlie  pa\ - 
mcnt  of  deius  ilue  from  deceased  persons.  The  order  of  pa) - 
ment  of  thr>sf  dcl»ts  is  nof  dinctrrl  by  statute,  hut  pro!iahh-dc- 


262  CASES  IN  THE  SUPKI:ME  COURT 

1808.      rived   from  the  civil  law,   and  adopted  hv  the  ecclesiastical 
I'razer    cf^"i"ts.  The  cases  cited  by  Mr.  Rmvle  iVom  Godolph.  Orph. 
V.         leg.  part  2.  ch.  28.  sec.  7.   1  P.  Wms.  130.  Benson  v.  Benson, 
1  I'Nis.     and  Viner  title  Executor  2.  0.  pi.  39.  prove  incontestably  that  a 
claim  for  unliquidated  damages,  founded  on  a  specialty,  ranks 
equally  with  a  debt  on  bond.   Theonly  answer  attempted  to  be 
given  to  these  cases  is,  that  our  act  of  Assembly  speaks  only  of 
debts  by  specialty,  but  the  ecclesiastical  law  of  England  regards 
only  the  instrument  by  which  the  demand  is  created,  whether 
such  demand  be  of  the  nature  of  debt  or  damages.  This  answer 
does  not  meet  the  difficulty.  The  order  of  payment  of  debts  in 
Engla7id  is  not  regulated  by  statute;  the  point  to  be  inquired 
of  therefore  is,  whether  approved  writers  on  the  ecclesiastical 
law  do  not  speak  of  this  kind  of  claim  as  a  debt.  The  words  of 
Godolphin,  M'hlch  have  been  adopted  by  subsequent  authors,  are, 
'■'  between  a  debt  by  obligation,  and  a  debt  for  datnages  tipon  a 
'"'■  covenant  brokcji,  there  is  no  priority."    If  we  are  to  have  re- 
course to  the  origin,  (the  latin  word  debitum,  a  thing  that  is 
due  or  ozv/ng)  I  see  no  reason  why  a  compensation  for  breach 
of  contract  may  not  be  due,  although  not  reduced  to  a  certain 
sum.   But  it  is  needless  to   examine   whether  this   extensive 
meaning  is  so  strictly  proper  as  that  in  which  it  is  generally  ta- 
ken in  the  coinmon  laxv.   It  appears  sufficiently,  that  the  legisla- 
ture had  authority  for  using  the  word  in  that  enlarged  sense, 
which  manifestly  best  answers  their  intent;  for,  to  construe  it 
otherwise,  would  leave  a  numerous  class  of  creditors  unprovid- 
ed for,  and  consequently  postponed  without  reason  to  all  others. 
It  was  suggested  though  not  much  urged  by  Mr.  Lewis,  that 
claims  of  this  kind  may  be  included  in  the  general  description 
oi  all  other  debts,  which  are  directed  to  be  paid  zvithoj/t  regard 
to  their  quality.  The  expressions  without  regard  to  quality  do  at 
first  view  seem  to  give  some  little  colour  to  this  construction; 
but  it  is  to  be  remarked  in  the  first  place,  that  this  is  in  direct 
contradiction  to  the  whole  scope  of  the  plaintiff's  argument, 
which  is  founded  on  the  position  that  a  claim  for  damages  is 
not  a  debt.  Then  as  to  the  words  "  without  regard  to  quality," 
there  is  no  difficulty  in  perceiving  why  they  were  introduced: 
the  five  first  classes  comprehend  all  kinds  of  debts,  but  those  by 
simple  contract.  Debts  bv  simple  contract  are  of  various  qualities'- 
verbal  contracts,  notes  of  hand,  bills  of  exchange  &c.  The  act 
of  1705  gave  protested  bills  of  exchange  a  preference  to  almost 
all  other  debts  of  the  nature, of  simple  contract.  The  act  now 


Tunis. 


OF  PENNSYLVANIA.  26$ 

under  consideration  rppeils  the  act  of  1705;  and  the  object  of     1 808. 
t\\^  words, -ii'ithout  regard  to  quality ^%v;xs  to  place  all  simple    Fkazeb. 
contract  debts  on  the  same  footing. 

Upon  the  whole  then  it  appears  that  the  14-th  section  of  the^ 
act  in  question  is  capable  of  two  constructions,  without  doing- 
violence  to  its  expressions.  The  court  have  no  hesitation  in  say- 
ing that  it  is  most  consistent  with  good  policy,  with  justice,  and 
with  the  intent  of  the  legislature,  to  consider  all  claims  found- 
ed on  contracts  of  the  nature  of  specialty  as  debts  by  specialty. 
It  follows  that  the  claims  of  Ruaton  and  Downing^  mentioned 
in  the  case  stated,  are  debts  by  specialty. 


Rug  AN  and  another,  assignees  of  Samuel  West  a 
bankrupt,  against  William  West. 

'HIS  was  an  action  of  Trover  which  was  tried  under  the 


T"".'   ""   "~r"  "J"  "t  V    •    D   •       ."The  56th 

gineral  issue  be  forcBRACKJNRiDGE  J.  at  a  Aisi  rniis  m  section  ot 

Di'cember  last.  Samuel  West  was  the  surviving  partner  of  Jo/ui  i'-'',^-  ^ 

IVcst,  and  an  administrator  to  his  estate,  in  which  characters  he  ;iet,  wiiicli 

was  possessed  of  all  thi-  personal  estate  of  Jo/in.  and  traded  ">-^'^' s  the 

•  *  ...  commission 

upon  it  for  his  own  account  from  1 797,  the  year  in  which  yo/iii  and  assij^n- 
diid,  to  the  autumn  of  1800.  The  defendant  was  the  guardian  mt'it  oonclu 
of  yo/in  West  s  children,  and  on  the  7th  and  8th  October  1800,  oftlic  u-a- 
obtainod  from  SamueL  who  was  at  that  time  einbarrasscxi,  an*';''^'"*,""  ^^'^ 

'  _  .  '  n!  biinkrupt- 

assignment  of  several  bonds,  notes  &c.  in  trust  for  the  children,  ly  in  all 

On  the  25th  A'c/pt-m/'fr  1800  a  commission  of  hnkruptcr  was  *;''"'' *''^'"'= 

'     '  tlic  assign- 

issued  against  Samnely  under  wliich  he  was  declared  bankrupt;  d. s  shall /sro- 

and   the  plaiiitifTs,  who  were   chosen  assignees,  instituted  the ''T'''"^ '"7.i 
*  '  .  tla/'tor  (it  the. 

present  action  to  recover  the  property  thus  assigned  to  the  iiaiiknipi  foi 

eiendant.  ^  ■'     ,         , 

ty  or  demand. 

The  counsel  for  the  plaintiffs,  after  opening  their  case,  g;rve  in  "^i*^'*  '"'^  "P" 
evidence  the  commission  of  bankruptcy,  and  the  assignmeitdu-  tion  i A'  trover 
ly  acknowktlgtd  before  a  iudge  of  this  court;  and  thev  then  .-^      "  "^' 

■'  *->  Jo  '  .  siijrnrcs. 

ofl'cred  in  evidence  the  original  proceedings  liefore  the  commis-  The  pro- 
sioncrs,  which  had  been  filed  in  the  clerk's  office  of  the  District  7'.'!'."|^'|''',?' 

siri|\<  IS  of 

bankrupt  «rc  Jtnis/iiJ  witliin  the  ,51st  section,  when  the;  conimissioncrH  have  |iro(i  cdetl 
on  tlie  rommisHioii,  examined  tho  h.inkinpt  and  nthcr  \\itiu»:ic-s,  admitted  the  irt-ditors 
to  pi'jve  their  dvl'ts,  and  a»»ij,f>ied  the  bankrupt's  (  Ktate.  And  when  filed  in  tiic  Disiricl 
Court,  rcrtificd  copies  tlureof  are  fjrima/acie  evidence  against  all  persons,  of  the  commi.s- 
sion,  trading,  and  act  of  bankniptcv. 


CASLS  IN  TIIK  SU HHEME  COURT 

Court,  including  all  the  examinations  of  the  bankrupt  up  to  the 
lUiGAN  time  of  his  certificate.  The  commission  and  assi^'fnncnt  were 
V.  proposed  as  cviilence  of  the  issuing  of  the  con:\mission,  and 
\Vest.  of  Samuel  lFest''s  being  a  trader  and  bankrupt  at  the  time 
mentioned  therein,  agreeably  to  the  56th  section  of  the  bank- 
rupt act  of  the  United  States^  passed  4th  u^pril  1800,  which 
Is  as  follows:  "  In  all  cases  where  the  assignees  shall  prosecute 
"  any  debtor  of  the  bankrupt  for  any  deht^  duty  or  demand^  the 
"^  commission  or  a  certified  copy  thereof  and  the  assignment  of 
"  the  commissioners  of  the  bankrupt's  estate,  shall  be  conclu- 
"  sive  evidence  of  the  issuing  the  commission  and  of  the  person 
"  named  therein  being  a  trader  and  bankrupt  at  the  time  men- 
"  tioned  therein."  The  proceedings  were  offered  as  evidence 
of  the  state  and  condition  of  the  bankrupt's  affairs,  and  the  course 
of  his  proceedings,  at  and  before  his  bankruptcy,  as  far  as  they 
appeared  in  his  examinations,  agi-eeably  to  the  51st  section, 
v.'hich  is  in  these  words;  "■  The  said  commissioners  shall  once 
*•'  in  every  year  carefully  file  in  the  clerk's  office  of  the  District 
"  Court,  all  the  proceedings  had  in  every  case  before  them  and 
"■  v.hich  shall  have  hecD  fnis/ied^  including  the  commissions, 
■•'  examinations,  dividends,  entries,  and  other  determinations  of 
"  tl:e  said  commissioners,  in  which  office  the  final  certificate  of 
''  the  siiid  bankrupt  may  also  be  recorded;  all  which  proceed- 
"  ings  shall  remain  oj' record;  and  certified  copie,s  thereof  shall 
"  be  admitted  as  evidence  in  all  courts  in  like  manner  as  the 
"  copies  of  the  proceedings  of  the  District  Court  ore  admitted  in 
■•'  othcj-  cases.'''' 

The  evidence  ofl'ered  under  the  5 1st  section  was  objected  to 
as  being  inadmissible  for  any  purpose  in  a  suit  between  these 
parties;  and  it  was  also  objected  that  the  commission  and  as- 
signment could  not  be  evidence  under  the  56th  section,  inas- 
much as  the  defendant  was  not  in  anv  sense  of  the  word  a  debtor 
of  the  bankrupt.  Of  the  same  opinion  on  both  points  was  the 
court. 

The  plaintiff 's  counsel  then  ofl'ered  the  deposition  of  Thomas 
Fisher  taktn  before  the  commissioners,  and  filed  with  the  other 
proceedings,  to  prove  the  act  of  bankruptcy,  he  being  dead. 
This  evidence  was  also  objected  to,  and  overruled;  and  the 
plaintiff's  not  being  prepared  with  other  evidence  to  these 
points,  a  nonsuit  was  entered  with  leave  to  move  in  bank  to  set 
it  aside. 


OF  PENNSYLVANIA.  055 

At  the  request  of  the  plaintiff's  counsel,  the  reasons  for  the      1808. 
opinions  of  the  court  were  reduced  to  writing  and  filed;  in  sub-     t>„^  77"" 
stance  they  were  these.  His  Honour  was  of  opinion,  that  between  y. 

these  parties  the  50th  section  had  no  effect  upon  the  evidence,  West. 
because  the  defendant  was  not  a  (Jebto>' whh'iu  either  the  common 
or  strict  acceptation  of  the  term.  The  action  oi' trover  supposes  a 
trespasser;  it  is  founded  in  tort;  and  where  no  money  has  been 
received,  it  would  be  a  fiction  to  treat  the  defendant  as  a  debtor, 
not  to  be  allowed  for  the  purpose  of  extending  an  exception  to 
the  rules  of  evidence.  The  word  debtor  in  the  56th  section  can- 
not be  construed  to  include  all  other  defendants;  and  if  it  could, 
so  as  to  comprehend  an  adverse  claimant  or  possessor  of  the 
bankrupt's  property,  it  would  be  unreasonable  so  to  construe  it. 
It  cannot  i)e  material  to  the  debtor  when  he  became  indebted,  or 
when  the  act  of  bankruptcy  was  committed;  or  if  it  should,  it 
would  be  a  hardship,  and  would  furnish  a  reason  for  confining 
the  conclusiveness  of  the  ex  parte  evidence  to  the  case  of  a 
debtor  commonly  so  called;  ex  parte  evidence,  because  there  is 
no  provision  in  the  law  for  giving  a  debtor  the  privilege  of  be- 
coming a  party  to  the  proceedings  before  the  commissioners, 
or  of  a  trial  by  jury  in  case  of  a  contested  fact.  IJut  where  the 
property  in  question  is  alleged  to  have  come  to  the  possession 
of  the  defendant  after  the  bankruptcy,  and  to  have  been  convert- 
ed by  him,  his  defence  may  rest  upon  the  time  of  the  bank- 
ruptcy; and  it  would  therefore  be  still  harder  to  extend  by  con- 
struction this  ex  parte  conclusiveness  to  the  case  of  such  a  de- 
fendant. It  seems  necessary  to  confine  the  innovations  by  this 
act  on  the  common  law  rules  of  evidence,  to  the  case  of  debtor 
or  creditor  in  the  common  or  strict  legal  and  technical  accep- 
tation of  the  term.  The  creditor  is  Ixirred  as  to  certain  facts, 
Ijecausc  he  may  make  himself  a  party;  and  the  debtor  to  a  cer- 
tain extent,  although  he  cannot  make  himself  a  party.  Under 
the  5 1st  section  the  proceedings  before  the  comniissioncrs,  filed 
in  the  District  Court,  ma)-  be  given  in  evidence  in  bar  of  a 
creditor  and  debtor,  conclusive  as  to  some  facts,  .xw^X  prima  facie 
as  to  all;  but  in  the  case  of  such  defendants  as  do  not  come  un- 
der the  description  of  creditor  and  del)tor  strictly  taken,  thev 
cannot  be  evidence  as  to  tlie  testimonj-  before  the  commis- 
sioners, unless  it  be  where  it  is  lost  and  not  in  the  power  of  the 
party  to  produce,  or  not  in  their  power  to  have  produced  since 
the  institution  of  the  suit.  The  present  suit  was  brought  in  Scp- 

Voi.     I.  2  1. 


RVGAN 


206  CASES  IN  THE  SUPREME  COURT 

1808.  iffii/nr  1801;  and  F'talier  died  oiil}'  during  the  last  Nisi  Prins; 
so  that  there  was  an  opportunit}  to  obtain  the  testimony  by  de- 
position, giving  the  defendant  liberty  to  cross  examine.  The 
West,  result  ot  the  vhole  is,  that  the  defendant  has  a  right  to  expect 
that  ever)'  step  in  establishing  the  bankruptc}'  and  the  assign- 
ment will  be  supported  by  proof  orignially  made,  and  where  he 
can  have  an  opportunity  to  cross  examine. 

A  motion  was  accordingly  made  to  set  aside  the  nonsuit, 
and  was  argued  for  the  plaintiffs  by  Gibson  and  JRawle^  and  by 
E-  Tilghman  and  Ingersoll  for  the  defendant.  The  Chief  Jus- 
tice, who  had  been  a  commissioner  in  the  cast,  did  not  sit  upon 
the  argument;  and  Judges  Smith  and  Brackenridge  sat 
solely  for  the  purpose  of  constituting  a  court,  as  the  former 
had  expressed  an  opinion  upon  the  material  points  opposed  to 
that  of  Judge  Brackenridge,  when  the  cause  was  opened 
before  him  at  a  Nisi  Prius  in  July  1807,  and  was  interrupted 
bv  the  sickness  of  a  juror. 

The  counsel  for  the  plaintiff  argued  that  the  commission  and 
assignment  were  by  the  56th  section,  made  conclusive  evidence 
between  these  parties,  because  the  term  debtor  is  not  to  be  taken 
in  a  strict  technical  sense,  but  as  a  correlative  to  debt,  diUy^  or 
demand^  and  as  expressly  descriptive  of  a  person  prosecuted^ 
which  implies  an  action  for  a  tort^  as  well  as  for  a  breach  of  con- 
tract. That  it  is  the  policy  of  the  law  to  make  them  conclusive-  of 
the  trading  and  bankruptcy  against  every  body;  because  from  the 
extent  of  the  United  States^  it  would  be  infinitely  inconvenient  to 
be  called  upon  for  proof  of  these  facts,  at  a  great  distance  from 
the  place  where  they  occurred.  That  if  by  the  section  they  are 
conclusive  only  upon  debtors,  strictly  speaking,  still  the  case 
of  this  defendant  is  embraced,  who  is  in  substance  a  debtor, 
although  pursued  by  an  action  of  trover;  for  the  section  does 
not  speak  of  any  form  of  actioii,  but  leaves  that  to  the  assig- 
nees, and  merely  regards  the  character  of  the  defendant,  as 
being  subject  to  a  demand  by  the  bankrupt  whom  they  re- 
present. 

The  objection  to  reading  the  proceedings  under  the  51st 
section  went  at  the  trial  upon  two  grounds:  first,  that  they 
were  not  finished;  but  this  is  clearly  the  case  when  all  the  sum- 
mary proceedings  of  the  commissioners  are  at  an  end,  although 


OF  PENNSYLVANIA.  26: 

dividends  may  remain  to  be  made.  W^hen  the  bankrupt  has  1808. 
obtained  his  certificate,  there  is  a  finishing  of  the  proceedings  jJT" 
M'ithin  the  meaning  of  this  section.  The  second  ground  was  -v. 
that  thev  were  evidence  only  between  parties  and  privies,  and  West. 
that  none  but  creditors  can  become  parties.  Taking  this  to  be 
the  case,  it  is  a  clear  principle  that  whoever  refuses  to  come  in, 
when  it  is  lawful  for  him,  is  as  much  concluded  as  an  actual 
party;  and  then  the  question  is  whether  the  representatives  of 
jfo/ifi  West  could  have  come  in;  and  where  was  the  impe- 
diment. There  was  a  clear  and  certain  debt  due  from  the 
bankrupt;  and  but  for  the  security,  the  whole  might  have  been 
proved.  The  security  does  not  alter  the  case,  whether  justly  or 
imjustlv  obtained.  If  unjustly,  it  is  out  of  the  question.  If 
justly,  thev  might  have  applied  for  the  sale  of  it,  and  have 
come  in  for  the  residue;  and  their  choosing  to  hold  to  the 
security  cannot  make  them  less  a  creditor;  if  it  is  insufficient, 
the  certificate  bars  as  to  the  deficiency,  and  this  shews  them  to 
be  a  creditor.  But  the  bankrupt  was  a  creditor  of  his  own  estate 
for  this  very  debt,  and  might  have  proved  it  as  administrator 
under  his  commission.  Ex  parte  Leeke  (a).  Co.  B.  L.  133.  137. 
If  the  estate  oi  yolin  West  is  barred,  of  course  the  representa- 
tives of  that  estate  are  barred  as  privies.  It  is,  however,  a  mis- 
construction of  this  section  to  confine  it  to  creditors,  'ihe 
words  that  the  "  proceedings  shall  remain  of  record''^  make 
them  evidence  without  any  thing  further;  and  as  they  are  so  to 
an  equal  extent  with  the  proceedings  of  the  District  Court  in 
rerriy  to  which  the  proceedings  under  a  commission  of  bankrupt 
are  analogous,  they  l)ind  all  the  world.  Certainly  they  are  evi- 
dence prima  facie ;  for  as  the  56th  section  is  conclusive  uj)on 
debtors,  and  creditors  are  bound  as  parties  without  a  Sjiecial 
provision,  the  only  oljject  of  the  51st  section  is  to  make  them 
evidence  between  persons  of  another  description,  for  which 
the  impartial  office  of  the  commissioners  was  a  sufficient  reason. 
Jatison  V.  Wilson  [b). 

Fislicr^s  evidence  would  therefore  come  in  under  either 
construction;  and  bv  his  death  there  is  an  additional  reason 
for  it.  He  coidd  not  have  been  examined  under  a  rule,  for  he 
was  nt  ither  an  ancient  nor  a  going  witness,  and  he  lived  within 
forty  miles  of  the  place  of  trial;  of  course  we  had  not  been 
guilty  of  laches. 

ia)  2  Bro.  .Wf.  (b)  Drnt;.  2t6.  C257"> 


268  CASES  IN  THE  SUPREME  COURT 

1808.  The  counsel  for  the  defendant  argued  upon  the  effect  of  the 

77~.  56th  section,  that  if  it  made  the  commission  and  assignment  con- 

■j..  elusive  evidence  between  these  parties  of  the  facts  stated  in  the 

"West,  section,  it  must  be  the  same  against  all  the  world;  in  which  case 
a  commission  would  be  proof  against  the  suggestion  of  fraud, 
concert,  and  all  other  defects.  In  the  face  of  the  grossest  mis- 
conduct in  the  bankrupt,  of  a  trading  and  act  of  bankruptcy 
preconcerted  and  merely  colourable,  in  fraud  of  the  law,  the 
commission  would  itself  protect  the  iniquity  by  which  it  was 
produced.  This  cannot  be  the  meaning  of  the  section;  in  the 
case  of  3I'-Laivs^  a  bankrupt,  Judge  1Vashi?ig-ton  held  that  it 
was  not;  for  upon  proof  that  the  whole  was  a  matter  oi  con- 
cert between  the  bankrupt  and  his  friends,  as  nine  tenths  ot  all 
the  bankruptcies  in  Pemisiihania  have  been,  he  decided  that 
there  was  no  bankruptcy.  The  true  construction  is.  that  as  it  is 
of  no  importance  to  the  debtor,  against  him  it  is  conclusive; 
but  against  persons  claiming  adversely  to  the  bankrupt,  it  has 
no  operation;  of  course  most  clearly  it  is  not  conclusive  in  those 
cases  where  the  bankrupt  himself  could  not  sue,  and  whei-e  the 
^  assignees  come  in  to  defeat  an  act  by  which  the  bankrupt  would 

be  estopped.  As  against  .S".  West^  the  assignments  in  question 
are  good,  be  they  ever  so  fraudulent  against  creditors;  and  he 
could  never  come  forward  to  defeat  them,  supposing  the  com- 
mission to  be  set  aside;  to  this  defendant  therefore,  the  time 
and  the  fact  of  bankruptcy  are  all  important.  But  what  is  deci- 
sive against  the  plaintiffs,  is  their  election  to  consider  the  de- 
fendant as  a  wrong  doer;  they  have  waived  the  contract,  and 
proceeded  for  the  tort;  and  they  shall  not  by  their  action  deny 
that  he  is  a  debtor,  and  deprive  him  of  the  rights  which  he 
might  have  in  that  character,  and  at  the  same  time  treat  him  as 
a  debtor,  for  the  purpose  of  exposing  him  to  consequences  to 
which  he  is  not  liable  as  a  wrong  doer. 

Under  the  51st  section  these  proceedings  are  not  evidence, 
because  subsequent  proceedings  remain  to  be  had.  The  filing 
of  the  dividends  implies  that  nothing  more  is  to  be  done;  and 
the  contrary  aigument  supposes  that  the  commissioners  may, 
from  time  to  time  file  the  proceedings  in  any  one  case,  part  at 
one  time,  and  the  residue  at  another,  which  the  section  does  not 
permit.  The  whole  must  be  filed  and  shewn  together,  that  no 
Improper  effect  may  be  produced  by  a  part.  But  at  most  they 
are  evidence  like  the  record  of  a  judgment,  only  between 


OF  PENNSYLVANIA.  269 

parties  and  privies,  that  is,  between  creditors  and  purchasers.      igOS. 
Now  in  the  first  place,  where  a  person  is  possessed  of  a  secu-  — tt";       ' 
rity,  he  is  not  obliged  to  give  it  up,  and  until  he  does,  he  cannot         ^,, 
prove  his  debt,  or  become  a  party,  and  is  to  the  present  pur-     West. 
pose  no  creditor.  Co.  B.  Z.  1 19.  But  further,  if  the  defendant  is 
treated  as  a  creditor  of  S.  JFest,  at  the  time  of  the  bankruptcy, 
it  is  because  the  assignments  are  looked  upon  as  an  act  of  bank- 
ruptcy, or  as  being  subsequent  to  such  an  act,  which  is  the  verv 
question.  So  that  whether  creditor  or  not,  even  by  the  plain- 
tiff's  argument,  may  depend  upon  the  time  of  bankruptc\', 
which  time  they  argue  to  be  fixed  against  the  defendant,  be- 
cause he  is  a  creditor.  The  argument  is  in  a  circle. 

Supposing,  however,  the  entries  and  determinations  to  be 
evidence  against  every  bod\-,  the  depositions  are  so  only  upon 
the  common  terms,  that  is,  where  the  witness  cannot  be  had, 
or  is  dead,  and  there  have  been  no  laches  in  obtaining  his  tes- 
timony, which  certainly  cannot  be  said  in  this  case. 

YnATF.s  J.  The  questions  raised  in  this  case  depend  chieflv 
on  the  true  construction  of  the  act  of  Congress  of  the  4th  April 
1800;  the  51st  section  whereof  is  in  these  words:  "  The  said 
''commissioners  shall  once  in  every  year  carefully  file  in  the 
"  clerk's  office  of  the  District  Court  all  the  proceedings  had  in 
"  every  case  before  them,  and  which  shall  have  hcvnjinifihed, 
"  including  the  commissions^  examinations,,  dividends,  entries, 
"  and  other  determinations  of  the  said  commissioners,  in  which 
"office  the  final  certificate  of  the  bankrupt  may  also  be  record- 
"ed;  all  which  proceedings  shall  remain  of  record  in  the  said 
"office,  and  certified  copies  thereof  may  be  admitted  as  e\i 
"  dence  in  a/l  rourt.f,  in  /He  yuanner  as  the  copies  of  the  pro- 
"ccedings  of  the  said  District  Court  are  admitted  in  (ithei- 
"  cases."  And  the  .56th  section  runs  thus:  "  In  all  cases  where 
*•'  the  assignees  shall  prosecute  amj  debtor  of  the  bankrupt  for 
"  any  dcbt^  ^^ifij  or  demand^  the  commission  or  a  certified  cop) 
"thereof  :uk1  the  assignment  of  the  commissioners  of  the  bank- 
"  rupt's  estate,  shall  be  conclusive  evidenc<-  of  the  issuing  the 
'"''  commission^  and  of  the  person  named  therein  being  a  trader 
"  and  bankrupt  at  the  time  mentioned  therein." 

I  have  no  hesitation  in  de(  laring  that  this  jGih  section  is  not 
leferahlc  to  an  action  of  trover  and  conversion.  The  words 
"  any  debtor"  exclude  suits  founded  in  tort^  from  the  operation 


270  CASES  IN  THE  SUPREME  COURT 

1808.  of  the  clause;  and  in  the  interpretation  of  a  law,  we  are  not  at 
RuGAN~  li^<-'rty  to  drop  any  expressions  made  use  of  by  the  lawgivers. 
V.  Besides,  there  is  a  solid  ground  of  distinction  between  causes  of 
West,  action  which  arise  ex  contractu,  and  those  which  arise  ex  de- 
licto.  It  is  of  no  moment  to  the  debtor  whether  the  suit  is  insti- 
tuted by  his  creditor  originally,  or  by  his  assignees,  or  when  the 
supposed  act  of  bankruptcy  was  committed.  His  defence  is  pre- 
cisely the  same  in  both  cases;  and  by  the  13th  section  of  the  act 
a  provision  is  introduced  that  "  where  a  debtor  shall  have  bona 
'"'•Jide  paid  his  debt  to  any  bankrupt,  without  notice  that  such 
"  person  was  bankrupt,  he  or  she  shall  not  be  liable  to  pa\'  the 
"  same  to  the  assignees."  But  in  cases  of  persons  claiming  by 
from  or  under  such  bankrupt,  adversely  to  the  assignment,  it  is 
all  important  to  them  that  they  should  be  at  liberty  to  contest  at 
law  the  commission,  trading,  bankruptcy,  and  the  time  of  the 
act  of  bankruptcy  committed.  To  preclude  such  persons  from 
their  full  defence,  and  to  conclude  them  by  proceedings  to 
which  they  neither  were  nor  could  be  parties,  would  in  my  idea 
be  a  violation  of  the  first  principles  of  justice.  Hence  it  is  that  by 
the  2d  section  of  the  act,  it  is  directed  that  the  petitioning  credi- 
tors shall  give  bond,  conditioned  for  the  proving  their  debts,  as 
well  before  the  commissioners,  ason  atrial  at  law,  in  case  the  due 
issuing  forth  the  commission  shall  be  congested,  and  also  for  pro- 
ving the  party  a  bankrupt.  And  such  has  been  the  usage  under 
the  bankrupt  laws  of  Great  Britain^  of  the  United  States^  and  of 
this  Commonwealth,  and  so  it  must  have  been  necessarily  de- 
termined in  the  case  of  M'-Laxvs  the  saddler,  by  Mr.  Justice 
XVashbigton^  in  the  Circuit  Court  of  the  United  States. 

The  51st  section  is  attended  with  more  difficulty.  The  words 
"  xvhen  finished'*''  may  I  think  be  fairly  satisfied  by  the  commis- 
sioners' proceeding  on  the  commission  awarded,  declaring  that 
the  party  was  a  Ixmkrupt  on  due  examination  and  sufficient 
cause,  examining  the  bankrupt  and  other  witnesses,  admitting 
the  creditors  to  j)iove  their  debts,  and  assigning  the  estate  and 
effects  of  the  bankrupt  to  such  person  or  persons  as  the  major 
part  in  value  of  such  creditors  according  to  their  several  debts 
proved,  should  appoint. 

It  is  declared  by  this  clause  that  the  proceedings  shall  remain 
of  record  in  the  office  of  the  ch.rk  of  the  District  Court;  and 
Copies  thereof  shall  be  admitted  in  evidence  in  all  courts,  in  like 


OF  PENNSYLVANIA.  271 

inaivier  as  the  copies  of  the  proceedings  ol"  the  District  Court      1808. 
are  admitted  in  other  cases. 

On  the  part  of  the  plaintiffs  it  has  been  contended,  that  the 


RUGAN 

V, 

proceedings  bting  declared  matter  of  record,  necessarily  be-  West. 
come  evidence  without  other  words;  and  being  put  on  the  same 
footing  as  the  proceedings  of  the  District  Court  in  other  cases, 
which  has  exclusive  maritime  jurisdiction  and  in  the  instances 
of  their  proceeding  in  rem^  all  the  world  are  supposed  to  be 
parties,  and  to  be  concluded  by  the  subject  matter  deter- 
mined. The  Icfendant's  counsel  have  insisted  that  the  clause 
must  be  construed  strictly,  as  an  innovation  on  the  rules  of 
evidence  at  common  law;  and  that  as  the  act  assimilates  the 
proceedings  of  the  commissioners,  considered  as  evidence, 
to  judgments,  the  former  can  only  be  read  in  such  cases 
where  the  judgments  could  be  received  in  evidence;  that  judg- 
ments are  not  admissible  in  evidence  except  as  between  the 
parties  and  privies;  and  consequently  as  the  defendant  neither 
was  nor  could  be  a  party  to  the  proceedings  before  the  com- 
missioners, those  proceedings  were  as  to  him  res  inter  alios 
acta;  and  he  could  not  be  affected  thereby  in  any  shape. 

The  res(jlutions  under  the  British  acts  of  bankruptcy  throw 
no  light  on  the  present  question.  They  vary  in  point  of  expres- 
sion from  our  statute,  as  far  as  relates  to  the  subject  under  con- 
sideration. The  statute  of  5  G.  2.  c.  30.  s.  41.  prescribes  that 
"  a  true  copy  of  the  record  of  such  commissions,  depositions, 
"  and  proceedings,  or  other  matters  and  things,  shall  and  may 
"  upon  all  occasions  be  given  in  evidence,  to  prove  such  com- 
"  mission  and  the  bankruptcy  of  sucli  person,  against  whom 
"  such  commission  hath  been  or  shall  be  awarded,  or  ot/ier 
"  matters  or  things^  any  law,  usage,  or  custom  to  the  contrary 
"  notwithstanding."  In  Janson  v.  Wilson^  Doug.  246.  (257) 
the  Court  of  li.  R.  were  of  opinion  that  the  depositions  of  the 
act  of  bankruptcy  when  recorded,  are  evidence  in  an  action  at 
law  to  prove  x.\\ii  precise  time  when  the  act  of  bankruptcy  was 
committed,  if  specified  therein.  But  it  is  said  that  it  has  7iot 
i)een  determined  whether  the  depositions  may  be  contradicted. 
Cooi.  li.  L.  5()2.  4  Ed. 

I  consider  the  bankrupt  law  as  a  system  of  policy  devised  b) 
the  legislature  of  the  union  for  great  national  purposes;  and  ac- 
commodated to  the  circumstances  and  local  situation  of  the 
I  ^nifrd  States.  Many  failures  must  necessarily  take  place  in  a 


212  CASES  IN  THE  SUPRKiMi:  COURT 

1808.      country  of  so  great  extent,  wlKrc  commercial  enterprise  pre- 
~~ri  "vails  in  a  hicrii  decree.   It  would  be  inconvenient  in  such  a  state 

J,  of  things,  that  in  everv  case  where  a  bankruptcy  occurs,  parol 

Wesi  .  proof  should  be  deemed  absolutely  necessary  to  be  made  of  the 
trading  and  act  of  bankruptcy,  however  remote  the  trial  might 
be  from  the  scene  of  action.  I  adopt  the  language  of  Lord 
Mansjield  in  the  case  cited  from  Douglas^  that  "  the  legisla- 
*'  ture  considered  the  commissioners  as  indifferent  persons, 
"  examining  the  witnesses  with  impartiality,  and  taking  care  of 
"  the  interest  of  all  parties."  In  the  case  of  the  death  of  any 
witness  examined  before  them,  his  testimony  is  perpetuated. 
The  law  seems  not  to  be  confined  to  those  who  are  or  might  be 
parties  to  the  proceedings.  Debtors  of  the  bankrupt  have  no 
such  opportunity  of  being  made  parties,  nor  have  distant  credi- 
tors; and  yet  with  respect  to  both  classes,  it  is  admitted  that  the 
proceedings  may  be  read  in  evidence.  Besides,  it  strikes  mc 
forciblv,  that  if  the  51st  section  is  not  considered  to  have  a 
general  operation  on  this  and  similar  cases  of  adverse  claims 
against  the  assignees,  then  it  is  wholly  nugatory  and  superflu- 
ous; it  can  have  no  possible  object.  The  56th  section  makes  the 
record  of  the  commission  conclusive  evidence  in  the  case  of  any 
debtors^  and  presupposes  that  a  general  provision  had  been  made 
as  to  receiving  such  record  in  evidence.  But  by  confining  its 
conclusive  effect  to  the  cases  of  debtors,  it  leaves  other  instances 
open  to  be  decided  on  by  a  jury,  on  a  fair  comparison  and  con- 
trast of  all  the  testimony  exhibited  on  the  trial. 

The  result  upon  the  whole  then  is,  that  the  proceedings  of  the 
commissioners  when  recorded  should  be  received  Tis  prima  facie 
evidence  of  the  commission,  trading,  and  act  of  bankruptcy,  in 
the  present  instance;  but  that  it  is  competent  to  the  defendant  to 
contest  the  same  by  other  proofs;  and  that  the  deposition  of 
Thomas  Fisher  who  died  since  the  examination  should  be  re- 
ceived in  evidence. 

Smith  J.  and  Brackknridgi:  J.  remaining  of  their  former 
opinion,  the  judgment  of  the  court  was  tliat  the 

Nonsuit  be  set  aside. 


OF  PENNSYLVANIA.  273 

TTTis  1808. 

tV.ils  MARCH  TERM.  1808. 

6stl54| 

The  Commonwealth  a  stains  t  Messinger  and  others.  Saturday, 

^  March  26tli. 

'TT^HE  defendants  were  indicted  in  the  Quarter  Sessions  of  Upon  anin- 
-*-     Northampton  county,  for  feloniously  stealing  one  bill  obli-  s,'ealinp'  a 

gatorij  given  bv  Messinger  to  Cleaver^  and  bv  him  assigned  to^'"'''^  noie, 
rr       '       4,    ,    r^,  .     ,  ,  .     .     ,:  ...  ,  bill  oblisrato- 

xienry  Abel.    1  hey  were  tried  upon  this  indictment  and  lound  py  &c.  evi- 

guilty;  but  a  new  trial  was  ordered,  because  the  verdict  was '^*-""ce  of  the 

taken  after  twelve  o'clock  at  night  of  Thursdai/y  the  court  having  ^i.e  ipstm- 

commenced  its  session  on  the  preceding  Monday^  and  the  time  i"*^"*^  "^^y  '"^ 

oi  holding  and  continuing  the   Court  ot  (:iuarter  sessions  in  out  shewing- 

Northampton  county  beincr  limited  by  law  to  four  days.  The  ^  "^^'ce  to 

,       .  •  "  .         .  '  the  defend- 

indictment  was  afterwards  removed  to  the  Circuit  Court,  and  ant  to  p>"o- 

was  there  tried  before  Br  ackenridgeT.  on  the  29th  .4/;;7/l  806. '^"^'^/'''■°'''' 

ii"inal  at  the 
At  ':h(  trial  Henry  Abel  was  produced  as  a  witness  on  the  partn-iui. 

of  the  prosecution,  and  being  about  to  state  the  contents  of  the  U"'''^''  ^^* 
bill  obligatory  ch:irged  to  have  been  stolen,  it  was  objected  by 'Ai)iii  1790 
the  counsel  for  the  defendants  that  no  parol  evidence  could  be  ^'I'^l^  de- 
admitted   to  prove   the   contents  of  the    bill,  but  that  the  bill  hiiceny  ot 
itself  should  be  produced,  or  evidence  given  that  it  was  lost  or'""^  "''^'5V 
destroyed,  or,  if  in  the  hands  of  the  defendants  as  alleged,  thatimnishcd  iu 

notice   was  eiven   to  them  to  produce  it.  This  objection  was      " '*"""*^ 
^  ,'  .  -^  manner  as 

overruled  by  the  court,  and  the  following  reasons  for  the  opinion  iaivcny  of 

were  filed  of  record  at  the  request  of  counsel,  aereeablv  to ''I'-^^""*^\°'^ 

^  '     o  /         cliuUi-ls,  the 

the  25th  section  oi  the  act  of  24th  February  1 806.   "  Overruled  Cdonious 

"  by  the  court,  because  this  is  not  a  case  within  the  reason  of  ^','.     •'^  ^^\ 

•  ,      '  _  ...  "'  ""f  hillou- 

"  the  principle  of  the  law  relative  to  giving  notice  to  a  defend- hiratory  is 

"  ant  to  produce  papers,  as  it  would  supervene  another  preat '""",' 

I  II'  I  _   's  as  a  larco 

"  principli-of  the  law,  that  no  man  is  bound  to  accuse  himstlf, 
*'  or  produce  evidence  of  his  guilt-  It  is  alleged  that  the  defind- 
"  -ints  did  take  and  carry  awav  the  p;ip«r,  which  supposes  it  in 
"  their  poss'  ssion,  and  out  of  the  power  of  tli!  Comujonwealth 
"  or  prosecutor  to  j)roduce  it;  the  next  best  (.vidence  is  thcre- 
"  fore  admissil)le,  which  is  the  proof  offered." 

H.  II.  Brackenridge. 

The  defendants  were  convicted;  and  on  th     30th  of  April 
their  counsel  filed  the  following  r(  ason  to  ground  a  motion  in 
Vol.  I.  2  M 


nv 


Messin- 

RK.R. 


274  CASES  IN  THE  SUPREME  COURT 

1808.  arrest  of  judgment.  "  That  at  common  law  no  larceny  could  be 
Common-  "  committed  of  a  'nil  oliligatory  as  laid  and  described  in  the  in- 
wculth  "  dictment.  That  this  indictment  if  founded  at  all,  must  be 
T-'-  "  founded  on  the  fifth  section  of  an  act  of  Assembly  passed  on 
'"'■  the  5th  dayof  ^/>;-?/  1790,  entitled  'An  act  to  reform  the  penal 
*'  laws  of  this  state;'  but  that  the  charge  laid  in  the  indictment  is 
"not  within  the  provisions  of  the  said  act,  inasmuch  as  the  said 
"  act  declares  that '  robbery  or  larceny  of  obligations  or  bonds, 
"  bills  obligatory,  bills  of  exchange  &c.  shall  be  punished  in  the 
"  same  manner  as  robbery  or  larceny  of  any  goods  or  chattels,' 
"  but  does  not  declare  or  provide  that  robbery  or  larceny  of  a 
"  bill  obligatorij  shall  be  so  punished."  The  motion  was  there- 
upon made  and  argued;  and  it  was  agreed  that  an  advisare  vult 
should  be  entered,  that  a  motion  for  a  new  trial  should  be  con- 
sidered as  having  also  been  made,  and  that  both  the  question  of 
evidence  and  the  objection  to  the  indictment  should  be  argued 
in  bank. 

The}-  were  argued  accordingly  on  the  1st  and  2d  of  jfan- 
nciry  1 808,  by  Hopk'inson  for  the  defendants,  and  the  Attor- 
neij  General  for  the  Commonwealth,  and  held  under  advise- 
ment until  this  day  when  the  Judges  delivered  their  opinions. 

TiLGHMAN  C.  J.  This  is  an  indictment  against  the  defen- 
dants for  felony  in  stealing  a  bill  obligatory  for  175/.  from 
Philip  Messinger  to  Jesse  Cleaver^  assigned  by  Cleaver  to 
Henry  Abel. 

On  the  trial  of  the  cause  two  points  were  reserved  for  the 
consideration  of  this  court. 

1.  Whether  parol  evidence  was  admissible  to  prove  the  con- 
tents of  the  bill  obligatory  described  in  the  indictment,  without 
having  given  notice  to  the  defendants  or  one  of  them,  in  whose 
hands  it  was,  to  produce  it  at  the  trial. 

2.  Whether  the  taking  of  one  bill  obligatory  is  punishable 
as  a  larceny,  under  the  act  of  5th  April  1790,  section  5. 

As  to  the  first  point,  the  law  seems  to  be  settled  in  England^ 
that  with  respect  to  proving  the  contents  of  writings  by  parol 
evidence,  there  is  no  difference  between  civil  and  criminal 
cases  You  are  to  produce  the  best  evidence  that  the  nature  of 
the  case  admits  of.  The  paper  itself,  if  in  existence,  and  in  the 
power  of  the  prosecutor,  is  to  be  produced;  but  if  it  is  in  the 
hands  of  the  defendant,  notice  must  be  served  on  him,  or  his 


Ml'    SIN- 
GER. 


OF  PENNSYLVANIA.  275 

attorney,  to  produce  it,  because  otherwise  it  cannot  appear  that      1808. 
the  prosecutor  might  not  have  had  the  original,  if  he  had  chosen  (-^     , 
to  call  for  it.  This  principle  is  established  in  the  cases  of  Le     wealth 
Merchant^  1  M-Nally  250.   The  King  v.  Aiciles,  1  Leach  330.         -^^ 
(third  edition)  The  Kbigx.  Watson^  1  M'-Nally  234.  and  Gates 
qui  tarn  V.  Winter^  2  D.  ^  E.  306. 

So  far  as  relates  to  all  papers,  but  that  which  is  the  su'ject  of 
the  larceny^  I  fullv  concur  with  the  principle  above  mentioned; 
but  with  respect  to  the  paper  which  has  been  stolen^  a  different 
rule  has  been  followed  in  Pennsylvania.  It  has  been  usual  to 
prove  the  contents  of  paper  bills  of  credit,  before  the  American 
revolution,  and  of  bank  notes  since,  without  giving  notice  to  the 
defendant  to  produce  them.  I  am  induced  to  follow  this  rule 
the  more  readily,  because  no  injury  can  result  from  it  to  the 
defendant.  He  is  informed  by  the  indictment,  in  what  manner 
the  paper  in  his  possession  is  described,  and  if  it  is  not  truly 
described,  he  has  it  in  his  power  to  shew  it.  This  in  effect  is 
notice;  and  I  think  it  is  for  the  interest  of  the  defendant  to  have 
it  so  considered.  The  court  have  no  power  to  compel  him  to 
produce  the  paper;  and  the  very  circumstance  of  giving  him 
actual  notice  to  produce  it  may,  in  case  of  his  not  complying, 
make  an  impression  to  his  prejudice  in  the  minds  of  the  jury. 
With  regard  to  other  papers,  the  case  is  very  different.  Not 
being  the  immediate  subject  of  the  prosecution,  the  defendant 
may  be  taken  by  surprise,  having  no  reason  to  suppose  that 
they  will  be  brought  into  question.  It  is  proper  therefore  in 
such  cases,  that  no  evidence  but  the  paper  itself  siiall  be  re- 
ceived, unless  the  defendant  having  received  notice  declines 
producing  it.  I  am  therefore  of  opinion  that  in  the  case  before 
us,  the  parol  evidence  was  properly  admitted. 

The  second  point  turns  on  the  fifth  section  of  the  act  of  5th 
April  1790.  It  is  thereby  enacted  that  "  robbery  or  larceny 
"  of  obligations  or  bonds,  bills  obligator) ,  bills  of  exchange, 
"  promisson'  notes  for  the  payment  of  inonev,  lottery  tickets, 
"  paper  bills  (if  credit,  certificates  granted  by  or  under  the  au- 
"  thority  of  this  Commonwealth,  or  of  all  or  any  of  the  United 
"  States'  of  Afnericoy  shall  be  punished  in  tiie  same  manner  a& 
"  robbery  or  larceny  of  any  goods  or  chattels." 

The  obvious  intent  of  this  law  appears  to  be,  to  put  bonds, 
with  respect  to  larceny,  on  the  same  footing  as  goods  or  chat- 
tels. They  arc  made  the  subject  of  larceny,  which  they  were 


276  CASES  IN  THE  SUPREME  COURT 

1808.  not  before.  If  larceny  of  bonds  is  to  be  punished  in  the  same 
0)111111011^  nianncr  as  larceny  of  onij  g-oods  or  chattels^  larceny  of  one  bond 
-wealth  niav  be  so  punished,  because  larceny  may  be  committed  of 
^'-  a  single  chattel.  When  it  is  said  that  larceny  of  bonds  may  be 
punished  as  larceny  of  a?ii/  goods  or  chattels,  it  is  saying  sub- 
stantially, that  larceny  of  any  bonds  may  be  punished.  Now  if 
this  had  been  the  exact  expression,  it  may  be  easily  shewn  by 
authority,  as  well  as  reason,  that  larceny  of  o?ie  bond  would 
have  been  included. 

The  statute  32  H.  8.  c.  9.  forbids  the  purchase  of  any  pre- 
tended rights  or  titles.  In  the  case  of  Partridge  v.  Straiinge 
and  Croker^  which  was  an  action  of  debt  on  this  statute,  6  and  7 
Ed.  6.  Ploivd.  86.  Justice  Hales  gave  his  opinion,  which  was 
not  contradicted  by  the  rest  of  the  court,  that  the  purchase 
\  of  one  pretended  right  was   an   offence   against   the   statute, 

although  the  words  are  in  the  plural  number.  The  statute 
23  H.  8.  c.  1.  takes  away  the  benefit  of  clergy  from  persons 
who  wilfully  burn  any  dxvelling  houses^  or  rob  any  churches  or 
chapels;  Mv  Lord  Hale  takes  it  for  granted,  that  the  burning 
of  one  dxvelling  house^  or  robbery  of  one  churchy  is  within  the 
purview  of  this  statute.  2  H.  H.  P.  C.  365. 

By  statute  2  G.  2.  c.  25.  s.  3.  it  is  enacted  that  "  if  any  person 
*'  shall  steal  or  take  by  robbery  any  bank  notes,  bonds,  bills, 
*'  promissory  notes  for  the  payment  of  any  money,"  &c.  &c. 
"  notwithstanding  any  of  the  said  particulars  is  termed  in  law 
*'  a  chose  in  action^  he  shall  be  deemed  guilty  of  felony  of  the 
*'  same  nature,  and  in  the  same  degree  &c.  in  the  same  manner 
•'  as  it  would  have  been  if  the  offender  had  stolen  or  taken  by 
*'  robbery  any  other  goods  of  like  value"  &c.  It  was  determined 
in  HasselPs  case  that  the  stealing  of  a  single  bank  note  is  with- 
in the  statute.  2  East.  Cr.  Law.  598.  1  Leach  1.  S.  C. 

By  act  of  Assembly  22d  April  1794.  s.  5.  any  person  who 
shall  be  convicted  of  printing,  signing,  or  passing,  any  counter- 
feit notes  of  the  bisnks  of  Pennsylvania^  North  America,  or  the 
United  States,  shall  be  punished  as  is  therein  prescribed.  It  has 
never  been  doubted  that  the  printing  of  one  counterfeit  note  is 
an  offence  within  this  act. 

Indeed  the  counsel  for  the  defendant  confess  that  if  the  ex- 
pression in  the  act  in  question  had  been  a7iy  bonds  &c.  the  con- 
struction must  have  included  one  bond,  because  they  say  the 
word  any  is  put  in  opposition  to  none.  But  the  word  any  may 


OF  PENNSYLVANIA.  27; 

with  equal  propriety  be  applied  to  a  substantive  in  the  singular      1808. 
or  in  the  plural  number;  and  where  it  is  joined  to  a  substantive  rommoii- 
in  the-  plunil,  it  certainly  has  in  strict  construction  a  plural  sig-     wealth 
nification.  So  that  all  the  cases  I  have   mentioned  where  any         ~^'- 
churches  has  been  construed  one  church  he.  prove  that  the  strict   ^^^^^^sin- 
meaning  of  the  expressions  has  been  departed  from,  in  order  to 
comply  with  the  manifest  spirit  and  intent  of  the  law.  The  truth 
is,  that  this  objection  is  founded  on  a  single  case,  which  when 
examined  does  not  warrant  the  extensive  conclusion  attempted 
to  bf  drawn  from  it;  I  mean  the  case  of  the  statute  1  Ed.  6.   c. 
12.  by  which  the  benefit  of  clergy  is  taken  from  the  felonious 
stealing  of  horses^  mares,  or  geldings.  A  doubt  arose  on  this  sta- 
tute, whether  clerg}-  was  taken  from  the  offence  of  stealing  one 
horse,  and  to  remove  the  doubt  the  statute  of  2  and  3  Ed.  6.  c. 
35.  was  made.  My  Lord  Hale'^s  account  of  the  matter  is  this, 
that  the  doubt  was  not  solely  because  the  statute  1  Ed.  6.  was 
in  the  plural  number,  horses,  mares,  or  geldings,  but  because  the 
statute  ^7  H.  8.  c.  8.  was  expressly  penned  in  the  singular  num- 
ber:  "  if  any  man  do  steal  any  horse,  marc,  foal,  or  filly;"  and 
then  this  statute  of  1  Ed.  6.  thus  varying  the  number,  and  yet  ex- 
pressly repealing  all  other  exclusions  ot  clergy  introduced  since 
the  beginning  of  Hcnrij  8.  made  some  doubt  whether  it  was  not 
intended  to  enlarge  clergy  where  only  one  horse  was  stolen. 

Upon  a  full  consideration  of  the  words  of  the  act  of  Assem- 
bly, and  of  all  the  authorities  which  bear  upon  the  point,  I  am 
of  opinion  that  the  felonious  taking  of  the  bill  obligatory 
charged  in  the  indictment,  is  punishable  as  a  larcen)-. 

Yeatf.s  J.  The  first  question  to  be  considered,  is  whether 
the  admission  of  parol  evidence  on  the  trial  of  this  indictment, 
respecting  the  bill  obligatory  alleged  to  have  been  stolen,  was 
erroneous,  no  notice  having  been  previously  given  to  the  de- 
fendant to  produce  it.  The  general  rule  is  (a)  that  when  an 
original  instrument  is  in  the  hands  of  the  party,  against  whom 
it  is  intended  to  be  given  in  evidence,  no  evidence  whatever  of 
its  contents  can  be  received,  until  notice  has  been  given  to  pro- 
duce it  in  order  to  avoid  misrepresentation;  and  it  is  said,  (b) 
that  there  is  no  distinction  in  this  particular,  between  civil  and 
criminal  cases.  Lord  Ala ns^e Id  sccma  however  to  have  drawn 

(fi)  Penh's  Compend,  70.  "1.  (/.)  M'Nal.  Evid.  348.350. 


278  CASKS  IN  THE  SUPREME  COURT 

1808.  :illne  of  distinction  between  thcin  in  (r/)  Roe  v.  Harveif;  and  he 
ConinioD-  l^ys  i^  down,  that  in  a  criminal  or  penal  case,  the  defendant  is 
wealth  never  forced  to  jjroducc  any  evidence,  though  he  should  hold 
^,  ^''  it  in  his  hands  in  court.  The  rule  is  introduced  to  guard 
'  GER  ligainst  a  false  statement  of  the  facts  contained  in  a  written  pa- 
per, and  presupposes  the  possession  of  the  paper  clearly  in  the 
adverse  party.  But  does  it  necessarily  follow,  that  the  designa- 
tion of  a  bill  or  note  as  the  subject  of  larceny,  draws  after  it  a 
minute  description  of  its  full  contents  with  the  date,  and  the 
names  of  the  witnesses?  And  is  it  consistent  with  the  benevo- 
lent spirit  of  the  law,  that  the  stolen  goods  charged  in  the  in* 
dictmcnt  for  felony,  shall  be  deemed  to  be  in  the  hands  of  the 
party,  standing  upon  his  trial  for  the  oflence  ?  The  presumption 
of  law  is  directly  adverse  thereto.  Innocence  is  always  sup- 
posed, until  guilt  is  duly  established.  I  take  the  larceny  of  pa- 
per bills  of  credit  made  tenderable  by  particular  laws,  to  be 
perfectly  analogous  to  the  present  case:  so  of  bank  notes.  Nu- 
merous indeed  have  been  the  instances  of  indictments  for  felo- 
ny in  stealing  such  bills,  laying  the  same  in  money  numbered, 
both  before  and  since  the  American  revolution;  and  yet  it  was 
never  thought  necessary,  that  notices  should  be  given  to  the 
prisoners  to  produce  upon  their  trials  the  bills  which  they  were 
supposed  to  have  stolen.  The  ground  of  guarding  against 
misrepresentation,  would  equally  hold  in  all  those  instances; 
but  it  will  not  be  asserted  that  the  rule  contended  for  has  ever 
obtained  an  application  in  any  of  them.  I  conclude  therefore, 
that  the  admission  of  the  parol  evidence  in  the  present  case, 
was  strictly  n-gular. 

The  next  question  is,  whether  the  stealing  of  one  bill  obliga- 
tory is  a  felony  punishable  by  the  act  of  Assembly  passed  April 
5th  1 790.  I  fully  assent  to  the  established  principle,  that  penal 
laws  are  to  be  construed  strictly,  and  that  they  are  not  to  be 
carried  beyond  their  letter.  1  also  am  disposed  to  concur  with 
Dr.  Burn^  who  asserts,  when  speaking  ol  the  stat.  10  Geo.  3.  c. 
l8.  Tthe  words  whereof  are,  "  if  any  person  shall  steal  any  dog 
"  or  clogs  of  any  kind  or  sort  whatsoever,  he  shall  forfeit  for  the 
"  first  offence  a  sum  not  exceeding  30/.  nor  less  than  20/.")  that 
it  might  be  doubtful,  whether  upon  this  act  it  is  penal  to  steal  a 
bitch,  {bj  Whether  the  opinions  of  the  judges  on  the  stat.  1  Ed.%.. 

(fl)4  Burr.  2489.  {h)  1  Burn's  Just.  497. 


OF  PENNSYLVANIA.  279 

f.  !2.  which  declared  "that  no  person  or  persons  convicted  of     1808. 

"  stealincr  horses,  mares,  or  eeldiners,  should  be  admitted  to  the  '^' 

^   ,  '  .  .  ,  .  Common- 

"  bent'fit  ot  clergy,"  (\vho  conceived  that  it  was  not  sufficient  to     wealth 

exclude  from  clergv  anv  person  who  should  steal  one  horse,  v. 
mare,  or  gelding,)  was  grounded  on  the  words  of  the  statute  be-  ^'^ssin* 
ing  merely  in  the  plural  number,  according  to  Sir  William 
Blackatonc^  (a)  or  that  they  entertained  doubts  thereon  for  the 
reasons  assigned  by  Lord  Hale,  (V)  it  is  immaterial  to  deter- 
mine. Dr.  Burn  assigns  what  he  calls  a  plain  reason  for  it. 
"  What  a  man  has  a  right  to  (as  his  life,  liberty  or  estate)  by  a 
"  clear  and  undoubted  law,  shall  not  be  taken  from  him  by  a  law 
"  less  clear  and  certain."  It  is  sufficient  to  state  that  our  books 
teem  with  authorities,  shewing  that  penal  statutes  shall  not  be 
construed  beyond  this  strict  letter.  It  must  be  remembered,  says 
Lord  Hale^  (c)  that  the  party  indicted  must  be  brought  within 
the  vert/  letter  of  the  statute.  But  according  to  Lord  Mansfield^ 
(d)  there  is  a  great  difference  between  bringing  a  case  within 
the  equity  of  an  act  where  it  is  not  within  the  words,  and  taking 
a  case  out  of  the  meaning  of  an  act  by  an  equitable  construc- 
tion, where  it  is  within  the  words:  the  first  ought  never  to  be 
done  in  a  criminal  case;  neither  ought  the  second,  if  the  case  be 
in  equal  mischief  with  others,  clearly  within  the  meaning  of  the 
act.  The  plain  words  therefore  of  the  fifth  section  of  the  act  of 
5th  April  1 790,  must  govern  our  decision  on  this  question.  The 
intention  of  the  lawmakers  must  be  extracted  from  their  own 
expressions.  The  whole  must  be  read  together.  To  every  ex- 
pression must  be  assigned  its  true  meaning.  Wc  have  no  power 
to  insert  and  interpolate  on  the  one  hand,  nor  on  the  other  to 
drop  and  reject  a  single  word,  in  order  to  make  the  act  com- 
port with  our  private  sentiments.  A  rational  construction  must 
be  formed  on  the  trjiite  ensemble^  according  to  tlie  apparent  in 
tention  of  the  legislature  as  expressed  by  themselves. 

So  far  then  as  the  s<ction  applies  to  the  case  under  conside- 
ration, it  will  read  thus.  ''  Larceny  of  bills  obligatory  shall  be 
punished  in  the  same  manner ^  as  larceny  of  any  goods  or  chat- 
tels." Of  the  proper  signification  of  the  term  antj^  there  is  no 
dispute.  Its  natural  sense  seems  to  be  settled  by  («)  judicial  de 

(a)  1  Bl.  Com.  87.  (c)  2  Jl  Jf.  1'.  C  344. 

(A)  2  H.  H.  P.  C.  56.5  U)  2  Kau'i  Cro'iiin  Lav:,  59?. 


Messin- 

OEK 


280  CASES  IN  THE  SUPREME  COURT 

1808.  cisions,  which  we  are  not  at  liberty  to  dissent  from,  unless  they 
^onmioiv^  flatly  contradict  our  ideas  of  right  and  wrong.  It  is  admitted 
wealth  that  any  is  the  converse  o{  none.  But  it  has  been  strenuously 
■^''  urged  by  the  defendant's  covmsel,  that  the  word  any  in  the  close 
of  the  section  only  relates  to  the  punishment,  and  that  it  cannot 
amplify  the  preceding  descriptive  plural  words.  These  cannot 
in  mv  idea  with  propriety  be  termed  descriptions  of  the  offen- 
ces; they  contain  an  enumeration  of  certain  choses  in  action, 
which  are  considered  as  mere  evidences  of  debts  or  duties, 
having  no  intrinsic  value  in  themselves,  and  which  the  lawgivers 
have  made  the  general  subjects  of  robbery  or  larceny.  It  may 
well  be  asked,  if  we  should  not  be  guilty  of  a  palpable  violation 
of  the  terms  of  the  law,  by  adhering  to  the  construction  that 
the  stealing  of  one  bill  obligatory  to  any  amount  whatever  is 
no  larceny,  and  that  the  stealing  of  two  or  more  bills  of  an  in- 
ferior amount  is  larceny?  The  mischief  intended  to  be  guarded 
against,  is  precisely  the  same  in  both  instances.  Besides,  are 
all  the  words  of  the  law  satisfied  by  such  narrowed  construc- 
tion? "  Larceny  of  bills  obligatory  shall  be  punished  in  the 
*'  sayne  manner  as  larceny  of  any  goods  or  chattels."  The 
stealing  of  one  single  specific  article  is  larceny  and  punishable 
as  such;  and  by  making  the  larceny  of  bills  obligatory  punish- 
able as  thefts  of  any  other  personal  property,  the  legislature 
have  both  in  terms  and  substance  enacted,  that  the  stealing  of 
one  single  specific  bill  is  also  larceny.  This  appears  to  me  to  be 
the  true  meaning  of  the  fifth  section  of  the  act  collected  ex 
visceribus.  I  cannot  think  the  present  case  a  casus  omissus;  and 
upon  the  whole,  I  am  constrained  to  say  that  the  defendant 
might  legally  be  convicted  of  stealing  the  bill  obligatory  laid  in 
the  indictment. 

Smith  J.  concurred. 

Brackenridge  J.  This  was  an  indictment  under  the  act  of 
Assembly  which  provides  "  that  robbery  or  larceny  of  obliga- 
"  tions  or  bonds,  bills  obligatory,  bills  of  exchange,  promissory 
"  notes  for  the  payment  of  money,  lottery  tickets,  paper  bills  of 
^'  credit,  certificates  granted  by  or  under  the  authority  of  this 

(a)  Leach.  C.  L-  1.  HasscPs  case.  2  Easfs  C.  L-  598. 


OF  PENNSYLVANIA.  281 

"  Commonwealth,  or  of  all  or  any  of  the  United  States  of  Ame-  1808. 
*•'  rica^  shall  be  punished  in  the  same  manner  as  robbery  or  lar-  Qq^^j,^^^ 
"  ceny  of  miif  goods  or  chattels.''^  The  securities  specified  in  wcidth 
the  act,  take  their  identity  much  more  from  the  writing  than  v. 
from  the  paper  upon  which  the  writing  is  made;  and  it  became  "  it-ssiN- 
necessary  to  establish  the  written  instrument  by  evidence  ot 
the  contents.  Evidence  was  offered  of  the  cont^^nts  by  parol. 
Exception  was  taken  that  no  evidence  could  be  given  of  a 
written  instrument,  short  of  the  writing  itself,  where  it  was 
in  the  power  of  the  part\-  to  produce  it;  and  if  in  the  power  of 
the  adverse  partv,  not  unless  notice  had  been  given  before 
the  trial  to  produce  it.  The  charge  laid  in  the  indictment, 
one  would  think,  in  this  case  would  have  been  notice  sufficient 
to  supersede  the  necessity  of  any  other  notice,  taking  away  all 
pretence  of  surprise  on  the  part  of  the  prisoner  by  the  evidence 
offered;  more  especially  as  this  had  been  the  second  or  thuxl 
time  of  trying  the  same  fact,  and  on  which  trials  this  evidence 
had  been  offered,  and  it  did  not  appear  that  it  had  been  except- 
ed against.  The  exception  of  not  having  given  notice,  was  a  sur- 
prise upon  the  prosecution.  Under  these  circumstances  it  would 
seem  unreasonable  that  the  accused  should  avail  himself  of  it; 
and  I  can  have  no  hesitation  in  thinking  that  this  itself  would 
take  the  case  out  of  the  rule,  with  regard  to  notice,  supposing  it 
otherwise  to  apply:  but  to  examine  it  independent  of  this  cir- 
cumstance, let  us  see  whether  it  is  a  case  which  required  notice 
to  the  accused,  in  order  to  let  in  the  evidence. 

It  would  seem  an  absurdity  to  expect  the  accused  to  produce 
a  thing  which  he  was  alleged  to  have  stolen;  or  to  say  that  we 
should  not  establish  the  identity  but  I)y  the  thing  itself:  that  we 
should  not  prove  the  value  or  the  colour  of  a  piece  of  cloth, 
until  notice  had  been  given  to  produce  the  article.  ''Take  notice 
"  that  pi  oof  will  be  given  of  the  Ixiy  horse  charged  in  the  indict- 
"  ment,  on  your  refusal  to  produce  him  at  the  trial;"  or,  "  take 
"  notice  that  you  produce  that  paper  at  the  trial,  with  stealin{^ 
"  which  you  are  charged,  otherwise  evidence  will  be  given  of  its 
"  contents."  I  take  it  that  it  would  be  a  sufficient  answer  to  the 
exception,  that  it  is  inconsistent  with  the  charge  of  feloniously 
taking,  to  suppose  that  the  accused  would  furnish  any  evidence. 
It  is  presuming  tliat  he  has  a  thinj^  in  his  possession,  which  he  ir, 
charged  with  stealing.  I  admit  there  is  no  difference  b  tweeii 
criminal  and  civil  cases  in  this  respect;  and  I  take  it  that  in  an 

Vol.  I.  2  N 


V. 

^Iessin- 

GER. 


2S2  CASES  IN  THE  SUPREME  CUUUT 

1808.  action  of  (Iclimie^  or  trover,  or  replevin,  where  the  phiintiff  goes 
Ti~"~~~for  u  specific  -writing  or  identical  paper  written  upon,  the  decla- 
v.ealth  ration  is  suiHcicnt  notice  that  it  is  considered  in  the  possession 
of  the  defendant,  and  that  evidence  inferior  to  the  writing  itself 
will  be  given  of  its  contents  at  the  trial.  But  here  we  arc 
brought  u]5  by  an  authority,  that  of  Lord  Kcnyon^  in  an  action 
of  trover,  ■where  this  inferior  evidence  was  offered  and  over- 
ruled. It  is  the  case  of  Coxvan  v.  Abrahams-  ct  al.  1  Enp.  N.  P. 
50.  It  would  seem  to  be  directly  in  point;  for  according  to 
the  report,  it  was  an  action  of  trover  for  a  bill  of  exchange, 
which  had  i)een  picked  out  of  the  pocket  of  the  plaintiff's  clerk, 
and  traced  to  the  possession  of  the  defendants.  The  declaration 
stated  the  bill  of  exchange,  describing  it  as  drawn  and  indorsed. 
The  plaintiff  proved  the  possession  and  loss  of  the  bill,  as  de- 
scribed in  the  declaration.  The  defendants  objected  to  the  go- 
ing into  any  evidence  respecting  the  bill  as  set  out  in  the  decla- 
ration, unless  notice  had  been  given  to  produce  it.  For  the 
plaintiff  it  was  insisted  that  it  was  sufficient  to  give  evidence  of 
anv  instrument  which  was  his  property,  as  described  in  the 
declaration,  and  which  had  tortiousiy  come  to  the  defendants' 
possession;  that  the  plaintiff  could  only  be  called  upon  to  prove 
the  averment  in  his  declaration,  which  he  did  by  the  evidence 
offered,  which  described  the  bill  of  exchange  in  the  defendants' 
possession,  as  laid  in  the  declaration.  Lord  Kenyoii  said  that 
the  objection  was  founded  on  a  rule  of  law  not  to  be  departed 
from,  namely,  that  the  best  evidence  the  nature  of  the  case  ad- 
mits of  is  always  to  be  given;  that  wherever  there  is  written 
evidence,  parol  evidence  of  its  contents  is  not  the  best  evidence, 
and  is  thtrefore  inadmissible;  but  that  if  the  party  in  possession 
of  the  written  evidence  v.ill  not  produce  it  when  called  on,  that 
then  inferior  evidence  is  admitted,  that  is,  parol  proof  of  its 
contents;  and  that  the  plaintiff  in  this  case  was  attempting  to 
give  parol  evidence  of  the  contents  of  the  bill  of  exchange, 
without  having  given  any  notice  to  the  defendant  to  produce 
the  original,  which  he  could  not  do.  On  a  motion  for  a  new 
trial,  the  Court  of  King's  Bench  concurred  in  opinion. 

In  tile  above  case  the  declaration  stated  the  bill  of  exchange, 
describing  it  as  drawn  by  John  Harrison^  on  Robert  and  Thomas 
Harrison^  in  favour  of  Thomas  Bentli/^  and  by  him  indorsed  to 
the  nlaintiff  in  the  usual  form.  This  is  to  be  remarked;  as  in  a  case 
where  the  opinion  of  Lord  Keuf/on  was  afterwards  quoted  as  an 
authority  before  the  Court  of  Common  Pleas  on  this  veiy  point, 


OF  PENNSYLVANIA.  283 

,it  was  put  upon  the  particularity  of  the  description  of  the  bill  1808. 
of  exchange  in  the  declaration;  and  I  think  it  is  not  difficult  Comnion- 
to  see  that  the  report  of  Espinasse  is  imperfect,  and  that  the  wealth 
ground  of  the  decision  of  Lord  Kenyan  does  not  sufficiently  '^• 
appear;  or  that  the  Court  of  Common  Pleas  are  astute  in  dis- 
tinguishing and  making  an  apology  for  his  decision.  For  it 
would  seem  to  me,  the  more  particular  the  description,  the  less 
reason  for  notice  of  what  was  intended  to  be  proved  by  evi- 
dence on  the  part  of  those  who  had  not  the  possession,  and 
could  not  be  expected  to  produce  the  writing  itself,  but  must 
offer  inferior  evidence.  The  case  to  which  I  refer,  is  that  of 
Buchvr  et  al.  v.  Jaratt.  3  Bos.  and  Piil.  143.  It  was  trover  for  a 
certificate  in  writing  of  the  registry  of  a  certain  ship  or  vessel 
called  the  Salem^  which  said  ship  or  vessel  had  been  registered 
by  the  plaintiffs.  At  the  trial  it  appeared  that  the  defendant, 
having  been  emploved  as  broker  in  the  sale  of  the  ship  by  the 
plaintiffs,  had  got  the  certificate  of  registry  in  question  into  his 
hands,  and  refused  to  deliver  it  at  their  desire  to  the  person 
who  had  purchased  of  them,  so  as  to  enable  them  to  obtain  a  fresh 
certificate  of  registry.  To  prove  that  such  a  certificate  had 
been  granted,  an  officer  of  the  customs  was  called,  who  pro- 
duced the  original  registry  from  which  the  certificate  was 
copied.  This  evidence  was  objected  to  on  the  part  of  the  de- 
fendant, because  no  notice  had  been  given  to  the  defendant  to 
produce  the  certificate  of  registry  itself,  without  which  it  was 
insisted  that  the  plaintiffs  could  not  resort  to  any  seconclarij  evi- 
dence of  the  instrument  which  they  sought  to  recover.  The  evi- 
dence however  was  admitted,  and  the  verdict  was  for  the  plain- 
tiffs. A  rule  nisi  for  a  new  trial  was  granted,  and  tiie  case  ol 
Cowan  V.  Ahraliams  relied  on ;  but  the  rule  was  discharged  b}-  the 
unanimous  opinion  of  the  court.  [His  Honour  here  repeated 
the  arguments  and  o])inions  in  the  case  oi Buchvr  v.  yaratt^  and 
referred  particularlv  to  the  intimation  of  the  court  in  answer  to 
Serjeant  Be-sty  who  argued  for  the  new  trial,  that  it  had  not  been 
the  practice,  and  v.as  not  necessary  upon  an  indictment  for 
stealing  a  written  instrument,  to  give  notice  to  the  prisoner  to 
produce  the  Instrument,  before  any  evidence  could  be  received 
of  its  contents.] 

If  we  examine  the  cases  In  tlie  books  whicli  have  been  refer- 
red to,  or  which  bear  upon  the  point,  we  shall  find  that  they  an- 
cases  of  evidence  of  something  in  the  possession  of  the  party 


284  CASES  IN  THE  SUPREME  COURT 

1808.      originally  or  which  had  conic  to  his  possession,  and  of  which 
'P"~~~itdid  not  necessarily  ioUow  that  evidence  would  be  offered  on 
wcahh     the  trial;  as  in  JSlolton  qxd  tarn.  v.  Harris.  2  E.sp.  N.  P.  549.  1  his 
'•  was  an  action  of  debt  for  a  penalty  under  the  statute,  for  killing 

iF.ssiN-  g^^^g^  'YXxc  defendant  pleaded  the  general  issue,  and  relied  that 
he  was  qualified  by  estate  to  kill  game.  To  prove  this  qualifi- 
cation, he  gave  in  evidence  the  payment  of  rents  by  scviral 
persons  who  held  houses  under  him,  to  the  extent  of  the  quali- 
fication; but  all  of  them  appeared  to  have  first  become  tenants 
to  him  from  Blichaetmas  1796.  The  title  under  which  he  claimed 
this  property  was  (as  appeared  by  the  receipts  made)  a  convey- 
ance from  a  Mr.  Felloxves^  whose  niece  he  had  married  in  the 
March  preceding.  The  counsel  for  the  plaintiff  contended,  that 
the  conveyance  was  fraudulent,  and  done  with  a  view  to  give 
him  a  fictitious  qualification  to  kill  game;  and  that  it  would  ap- 
pear so  by  the  deed  of  settlement  made  on  defendant's  mar- 
riage. To  prove  the  circumstance  they  called  Mr.  Walford^  who 
was  attorney  to  the  defendant;  but  not  being  able  to  get  the  fact 
from  him,  Garrotv  proposed  to  give  in  evidence  the  memorial 
of  the  conveyance  as  registered,  and  contended,  that  as  the  deed 
was  in  the  hands  of  the  defendant,  such  inferior  evidence 
would  be  sufficient.  Lord  Kenyon  asked  if  notice  to  produce  it 
had  been  given;  and  being  answered  in  the  negative,  ruled  that 
no  notice  having  been  given  to  produce  the  deed,  no  proof 
whatever  of  its  contents  was  admissible  by  any  other  evidence. 

It  did  not  necessarily  follow,  nor  indeed  can  we  say  that  it 
ought  to  have  been  expected  by  the  defendant  in  this  case,  that 
the  allegation  of  fraud  would  be  set  up,  and  that  evidence  would 
be  offered  of  the  memorial  of  the  conveyance,  or  of  the  convey- 
ance itself  in  this  case.  It  had  become  matter  of  evidence  in 
consequence  of  evidence  that  had  been  given,  rebutting  or  re- 
pelling evidence  in  the  cause,  all  which  may  be  unexpected  by 
the  person  against  whom  it  is  produced. 

I  take  it  therefore  that  in  the  case  before  us,  on  general  prin- 
ciples, and  under  the  circumstances  of  the  case,  the  evidence 
was  admissible. 

The  reason  in  arrest  of  judgment  comes  now  to  be  consider- 
ed; that  the  act  of  Assembly  specifies  the  robbery  or  larceny  c«f 
obligations  or  bonds,  bills  obligatory,  &c.  but  not  of  a  bill,  which 
was  the  charge  in  the  indictment  in  this  case.  There  could  be 
no  good  reason  with  the  legislatuz-e  for  not  making  the  larceny 


OF  PENNSYLVANIA.  285 

of  a  single  bill  punishable;  because  the  larceny  of  a  single  bill      1808. 

of  a  large  amount  might  be  an  equally  valuable  chattel  with  (^Q^^j^^on- 

many  bills  of  a  smaller  amount.   But  if  it  is  a  casus  omissus^  a.     wealth 

matter  not  made  larceny  by  express  words,  or  necessary  con-         t'- 

struction,  no  power  inferior  to  the  legislature  can  make  it  lar-    -1^^^^^' 

ceny.  For  with  equal  reason  it  might  be  said  that  one  horse 

might  be  equal  in  value  with  two;  nevertheless,  a  doubt  arose  on 

the  statute  of  1   Ed.  VI.  cap.  12.  sec.  10.  which  in  the  case  of 

a  person  attained  or  convicted   "  for  feloniously  stealing  of 

"horses,"  '"  tikes  away  the  privilege  or  benefit  of  his  clergy;" 

for  a  subsequent  statute  of  2d  and  3d  Ed.  VI.  cap.  33^  has  this 

preamble:  "  for  as  much  as  it  is  and  hath  been  ambiguous  and 

"  doubtful  upon  the  words  mentioned  in  one  act  of  parliament, 

"  made  in  the  first  year  ot  the  reign  of  our  sovereign  lord  tiie 

"  king,  whether  that  any  person  being  in  due  form  of  the  lav/s 

"  found  guilty,  or  otherwise  attainted  or  convicted,  for  feloni- 

"  ouslv  stealing  one  horse,  gelding,  or  mare,  ought  to  be  admit- 

*'  ed  to  have  or  enjoy  the  privilege  and  benefit  of  his  clergy  and 

"•  sanctuarv;  therefore  it  is  declared  and  enacted  by  the  king, 

*'  &c.  that  all  and  singular  persons  feloniously  stealing  or  taking 

"  any  horse,  gelding,  or  mare,  shall  not  be  admitted  S:c.;  in  like 

"  manner  and  form  as  though  he  or  they  had  been  indicted  for 

"  felonious  stealing  of  two  horses,  two  geldings,  or  two  mares.'' 

By  Lord  Ha.'r,  1  PI.  C.  365.  the  doubt  was  not  singly  be- 
cause the  statute  of  1  iTfl'.  VI.  was  in  the  plural  number,  '■'■/lorsc-s. 
'■^tnares,  or  geldings;''''  for  then  it  might  as  well  have  been  a  doubt 
whether  upon  the  statute  of  23  Hen.  VIII.  cap.  1.  he  that  had 
v/ilfuUy  burned  one  house  should  not  liave  had  his  clergy,  be- 
cause the  words  in  that  statute  are  in  tlie  plural  number,  dwell- 
ing houses  orl)arns.  But  the  reason  that  made  the  scruple  v.as, 
liecause  the  statute  of  37  //.  8.  cap.  8.  was  expressly  penned 
in  the  singular  number,  "  if  any  man  would  steal  any  horse, 
"  man;  or  fillv:"  and  then  this  statute  of  1  Ed.  \'I.,  thus  vary- 
ing the  number,  and  yet  expressly  repealing  all  other  exclusion? 
of  clergy  introduced  since  the  begitming  of  Jlonij  8.,  mad«. 
some  doubt  whether  it  were  not  intended  to  enlarge  clerg\- 
where  only  one  horse  was  stolen.  To  remove  thisdoul.it  the  sta- 
tute of  2  and  3  Ed.  VI.  cop.  33.  was  passed,  whereby  clergy  is 
f-xcludcd  from  him  that  steals  one  horse,  gelding,  or  mare. 

The  doubt  would  seem  to  have  originated  in  tlie  humanity 
of  the  Judges,  feeling  the  sanguinary  niUure  gf  the  code  whi(!h 


OER. 


0-86  CASES  IN  TiiE  SUPREME  COURT 

1808.      ^^^'^'  ^^^^  *o  execute,  and  knowing  that  the  benefit  of  clergy  haci 

7i  been  a  means  of  softtninp  it  by  Icoishitive  extension,  or  judi- 

Common-  •         tt  r     i    i  n  c        v 

wealtli     cial  construction.  Hence  we  find  that  a  small  matter  ot  i-eaclmg 

^•.  would  enable  an  unfortunate  convict  to  pass  in  the  courts  for  a 
Messin-  clerk,  and  to  claim  the  privilege  of  clergy.  It  may  have  been 
imder  this  impression,  and  from  the  singular  circumstance  of  the 
two  statutes  mpari  materia  varying  the  expression  from  the  sin- 
gular to  the  plural,  that  the  doubt  was  excited.  But  it  has  been 
correctly  observed  by  the  counsel  in  the  argunaent,  that  in  the 
statute  23  //.  8.  cap.  1.  it  is  the  'robbing  of  any  churches, 
'burning  of  a;»/ dwelling  houses,  that  is  excluded  from  clergy,* 
which  Lord  Hale  does  not  take  notice  of,  but  omits  the  word 
any  which  is  used  in  the  statute,  and  is  a  distributive  nu- 
meral word,  pointing  to  the  singular  of  houses,  barns,  or 
churches.  If  there  is  any  force  in  the  word  any^  it  is  certainly 
an  omission  which  weakens  the  analogy  of  his  reasoning.  That 
there  is  force  in  it  cannot  be  denied.  In  the  Anglo-Saxon  the 
word  an  means  one;  thence  ane  and  a7iy.  In  HassePs  case, 
the  indictment  under  the  statute  2d  Geo,  2.  c.  25.  §  3.  (which 
enacts  that  "  whoever  shall  steal  or  take  by  robbery  any  exche- 
''quer  bills,  &c.  shall  be  deemed  guiltv  of  felony,")  charged  the 
stcalhig  one  single  bank  note.  Before  the  prisoner  entered  on  his 
defence,  it  was  submitted  to  the  consideration  of  the  court,  that 
the  subject  of  the  larceny  was  not  within  the  terms  or  intention 
of  the  act  of  parliament;  that  penal  acts  were  to  be  construed 
with  great  strictness,  and  could  not  be  made  to  aflfect  the  life,  li- 
berty, or  property,  but  according  to  the  literal  import.  To  which 
it  was  answered  that  they  must  be  construed  I'easonably,  ac- 
cording to  the  common  sense  of  mankind,  and  the  apparent 
intent  of  the  legislature;  that  the  words  were  "  whoever  shall 
"  feloniously  steal  any  bills,  &c."  and  then  it  goes  on  to  say, 
"  notwithstanding  any  of  these  particulars  may  be  termed  in 
'•  law  a  chose  in  action;"  which  plainly  shews  that  it  was  the 
Intention  of  the  legislature  to  make  the  stealing  of  a  chose  in 
action,  which  one  single  bank  note  is,  felony;  that  the  words  of 
2  and  3  Ed.  3.  c.  33.  were  horses,  &c.  and  not  any  horses,  and 
yet  it  was  only  doubted  whether  it  did  extend  to  one  horse;  that 
by  22  and  23  Char.  2.  c.  7.  it  was  made  felony  to  burn  any  ricks 
or  stacks  of  corn,  and  yet  it  had  never  been  doubted  but  that 
rhe  burning  of  one  barn  was  ftlonv  within  the  <^tatute. 


OF  PENNSYLVANIA.  287 

The  Court,  after  consulting  upon  the  subject,  declared  that      igns 
it  was  their  clear  and  unanimous  opinion  that  there  was  nothing  ~ 
in  the  objection.  Whether  it  was  the  word  am/  that  had  helped     wealth  ' 
them  out,  does  not  appear  by  the  report.  But  it  seems  to  have         v. 
been  the  idea  that  it  was  ex  vi  termiyii^  or  by  the  effect  of  the    Messix- 
word  any^  that  the  plural  was  narrowed  to  the  singular,  or  that       ^'"^^ 
a  singular  was  considered  as  within  the  words.  "■  Though  the 
"  statute   mentions  bank  notes  in  the  plural  number,  yet  the 
'•*•  stealing  of  a  single  bank  note  is  within  it,  particularlv  on  ac- 
''  count  of  the  words  which  follow:  "notwithstanding  any  of 
"  these  paiticulars  may  be  termed  in  law  a  chose  in  action." 

The  effect  of  the  word  any  in  the  construction  of  the  statute 
against  selling  pretended  rights  and  titles,  is  noticed  in  Far' 
fridge's  case,  1  Plow.  86.  Hales  J.  says  that  a  pretended  right 
and  title  in  the  singular  number  is  within  the  penalty  of  the  sta- 
tute; for  the  plural  number  contains  in  itself  the  singular  number 
and  more;  and  if  one  right  or  title  should  not  be  contained  here, 
the  effect  of  the  statute  would  be  set  aside;  and  also  every  right 
or  title  is  contnined  in  the  last  branch  by  this  word  anij^  and 
therefore  for  this  reason  a  right  or  title  in  the  singular  num- 
ber is  within  the  statute. 

In  the  act  of  Assemblv  in  this  state  entitled  an  act  against 
removing  of  land  marks,  1  -SV.  Laws.  3.  the  word  any  is  used: 
"  That  no  person  in  this  province,  or  counties  annexed,  shall 
''^cut,  fell,  alter,  or  remove,  any  certain  boundary  tree,  or  other 
"  allowed  land  mark."  And  in  an  act  entitled  an  act  against  ef- 
facers  of  charters,  the  word  any  is  used :  "•  That  whosoever  shall 
"  forge,  deface,  corrupt,  or  embezzle,  any  charters,  gifts, grants, 
"  bonds,  bills,  wills,  conveyances  or  contracts,  shall"  ike.  In  the 
first  act  the  word  any  is  used  with  the  singular  word  tree  or 
land  mark;  and  in  the  second  art  with  the  plural  words  chart- 
ers, gifts,  &c.  indifferently.  Would  it  not  seem  from  hence  that 
the  use  of  the  word  was  not  so  marked  by  them  as  to  be  of 
much  import  in  construing  their  acts? 

Hut  if  the  word  any  is  of  such  effect  provided  it  is  found 
somewhere  attached  to  the  plural  words  or  can  be  referred  to 
them,  we  have  it  here  in  the  very  same  section  and  selfsam(.' 
sentence  in  which  the  suljject  of  the  larceny  is  specified,  and 
the  penalty  affixed:  "  Robbery  or  larcenv  of  obligations,  8<c. 
"  shall  be  punished  in  the  same  manner  as  robbery  or  larceny  of 
*'  any  goods  or  chattr-ls."  That  is,  as  robbery  or  larceny  of  any 


V. 

^Iessin 

GER. 


288  fASES  IN  THE  SUPREINIL  COURT 

1808.  goods  or  chattels  is  punished,  so  shall  robbery  or  larceny  ot" 
Tv^  ,  ,,  ohlioraions,  that  is,  of" any  obligations.  Such  ellipses  continuallv 
wculth  occur  in  ordinary  speech;  and  the  language  ol'  a  statute  is  like 
that  of  ordinary  conversation,  for  it  is  drawn  from  it.  I 
Avould  refer  to  popular  phraseology  in  construing  an  act  of  the 
legislature.  "  It  is  the  office  of  the  Judges  to  know  the  common 
••'  language  of  the  people,  and  their  common  method  of  speak- 
*'  ing,  and  to  adjudge  upon  them  according  to  the  common 
''  course  and  understanding  of  the  people  of  the  country."  1 
Ploxv.  169.  329.  An  individual  giving  notice  by  advertisement 
that  he  meant  to  prosecute  trespassers  upon  his  orchards,  gar- 
dens, fields,  meadov.s,  &c.  would  think  he  had  made  himself  to 
be  understood  as  cautioning  against  an  entry  on  any  one  of 
these;  nor  coull  any  person  be  reasonably  supposed  to  under- 
stand him  otherwise. 

But  even  on  the  ground  of  strict  construction,  I  distinguish 
materially  between  stealing  obligations,  and  stealth  of  obliga- 
tions. The  word  of  (in  the  Gothic  :vL\(i.  Anglo-Saxon  af)  means 
consequence,  offspring.  1  Ep.  Pter.  299.  The  word  concern- 
ing is  used  to  explain  it;  we  say  of  and  concerning,  and  of 
or  concerning;  so  that  larceny  of  obligations,  means  larceny 
concttrning  obligations,  that  is,  that  species  of  property  which 
comes  under  the  head  of  obligations.  This  I  take  to  be  the 
meaning  of  the  words  in  so  plain  and  obvious  a  construction 
as  to  render  them  impossible  to  be  mistaken;  and  notice  of  the 
offnce  to  all  whom  it  may  concern,  to  what  extent  punishable, 
is  the  principle  which  ought  to  govern  the  construction.  I  do 
not  think,  therefore,  it  would  be  justifiable  to  arrest  the  judg- 
ment in  this  case. 

New  trial  refused,  and  judgment 
for  the  Commonwealth. 


OF  PENNSYLVANIA.  289 

1808. 

~lb289  HaRTZELL  against  R E I S S .  Saturday, 

11    238;  Marcli 

In  Error.  26th. 


108      75 1 


T 


HIS  was  a  writ  of  error  to  the  Common  Pleas  of  iVorM- Under  the 

pK-aofpay- 
ampton  connty.  me, u  to  a 

On  the  \2x.\\oi  November  1793,  Hartzell^  TisshtviK  oi  North- scire  facias 

ampton  county,  sold  a  tract  of  land  which  was  purchased  by  juj^piei^t^ 

jReiss,  who  paid  him  part  in  cash,  and  for  the  residue  gave  histlie  defen- 

bill  penal  with  a  warrant  of  attorney.  Judgment  was  confessed    |",p  i^^?^.j. 

on  the  26th  of  Au!(ust  1795.   A  scire  facias  to  revive  the  judg-dence,  tliat 

ment  was  brought  to  April  Term  1803,  to  which  J^eiss  appear- executed  the 

ed,  and  pleaded  payment  with  leave  to  give  the  special  matter ^o" J  •'^"'1 

in  evidence.  The  cause  was  continued  until  March  1806,  when^|'  „\^,j',i(.l, 

a  motion  was  made  on  behalf  of  the  defendant  to  open  thethcjudg'- 

judgment,  for  the  purpose  of  letting  in  a  defence,  and  in  the  confessed, 

mean  time  to  stay  proceedings  on  the  scire  facias.  This  motion  t'le  phiintifF 
,  ,  '  ,,,,  ■        r     ■  1-1  pioiTiisedlo 

was  refused  by  the  court.    1  he  scire  Jacias  accorcnngiy  camccanccl  it 

on  for  trial  in  Atiinist  1«<)6,  when  agreeablv  to  notice  the  de-"Po"iin 

rr        1  I-    1  •  1      '  I  I    n  event  which 

lendant  ottered  one  ol  the  witnesses  to  tlie  penal  bill,  to  prove  |,.,s  occur- 
that,  previous  to  its  execution,  it  was  mentioned  by  both  parties'"^''  |*"\<^^- 

.  .  tlie  iud"- 

that  the  above  mentioned  tract  of  land  was  subject  to  a  mort-meiit.   *" 

gage  to  one  James  Williams^  and  tliat  the  bill  was  to  be  given 
only  to  secure  the  pavment  of  that  mortgage;  that  Hartzell  at 
that  time  declared,  that  whenever  Reiss  should  pay  oft'  the 
mortgage,  he  would  cancel  the  bill;  that  upon  this  assurance, 
Reiss  executed  it,  and  that  on  the  30th  April  1802,  Reiss  had 
been  compelled  to  pay  the  mortgage  to  IVilliaiiis.  To  this  evi- 
dence the  jjlaintin's  counsel  objected,  but  the  court  overruled 
the  objection;  whereupon  a  bill  of  exceptions  was  tendered  and 
sealed,  which  was  nov/  brought  up  by  the  writ  of  error. 

Sitirrr(roes  and  lui^crsoll  for  the  plaintiff  insisted  that  the 
evidence  was  inadmissible  upon  this  principle,  that  the  defen- 
d:int  cannot  plead  an\'  matter  to  a  scire  facias  on  a  judgment, 
which  he  mi;^lu  have  pleaded  to  the  original  action;  2  'li(ld\s 
Practice  104G;  and  that  its  being  a  judgment  by  confession 
did  not  affect  the  principle.  Midilleton  v.  IJill  (a).  In  Bush  \. 
Ctoxver  (A)  which  was  a  scire  Jacias  on  a  judgment  by  warr.int 

(a)  Cro.  El.  58P.  (f>)  Cat.  Tcmf:  //<mh.:  22". 

Vol.  I.  20 


O90  CASKS  IN  THE  SUPREiME  COURl 

1808.  ot"  attorney,  to  which  the  defendant  pleaded  the  statute  of 
iTautzell'^'''^^'^'  //a7<'/t7;i.9  for  the  defendant  relied  on  that  ground,  and 
7'.  said  that  the  reason  why  the  plea  was  refused  in  MidiUft07i  v. 
Reiss.  ///■//,  was  because  it  might  have  been  pleaded  before  the  judg- 
ment; but  the  defendant  in  his  case  had  never  had  an  opportunity 
to  plead  it.  Lord  Hardxvicke  however  said,  that  the  true  way  was 
to  move  the  court  to  set  aside  the  judgment,  but  that  the  plea 
could  not  be  maintained.  So  in  Cooke  v.  Jones  (a),  where  the 
court  had  granted  a  rule  nisi  to  vacate  a  judgment  confessed, 
and  to  stav  proceedings  on  the  scire  facias^  upon  an  allegation 
that  the  consideration  upon  which  the  warrant  of  attorney  was 
obtained  was  usurious.  Lord  Mansfield  said,  "  the  defendant 
"  is  without  relief  unless  the  court  interposes;  he  can  plead 
*•'  nothing  in  bar  of  the  scire  facias.,  which  he  might  have 
"  pleaded  in  the  original  action;"  and  the  court,  therefore, 
ordered  the  rule  to  be  enlarged,  and  an  issue  to  try  whether 
the  contract  was  usurious.  Here  the  evidence  went  to  shew 
that  nothing  was  ever  due  on  the  bond,  and  it  would  of  course 
have  been  competent  to  the  defendant  to  shew  it  in  an  action 
on  the  bond.  The  proper  mode  was  by  motion;  and  if  the 
defendant  deferred  that  for  ten  years,  he  has  no  cause  to 
complain. 

Rarvle  for  the  defendant  answered  that  neither  the  principle 
nor  the  authorities  applied  to  the  case.  In  Middleton  v.  Hill., 
and  in  Bush  v.  Gower^  the  plea  was  the  statute  of  usury.  It 
%vent  to  the  original  contract,  which  might  have  been  shewn 
upon  the  action,  and  therefore  the  only  way  of  getting  at  it,  was 
by  a  motion  to  vacate  the  judgment,  as  in  Cooke  v.  Jones.  But 
the  object  of  the  evidence  here,  was  to  shew  an  equitable  de- 
fence, arising  out  of  facts  which  did  not  exist  at  the  time  the 
judgment  was  entered,  and  could  not  have  been  pleaded  to  the 
original  action,  even  if  action  had  been  brought.  Of  course  the 
rule  of  pleading  is  out  of  the  question.  The  only  point  is, 
whether  upon  a  scire  facias.,  a  defendant  may  not  give  in  evi- 
dence facts  arising  since  the  judgment,  to  shew  that  the  plain- 
tiff is  not  entitled  to  execution.  This  is  the  first  opportunity  we 
have  had,  not  because  the  judgment  was  confessed,  but  because 
the  defence  did  not  exist  till  since  that  time.  Our  motion  to 
the  court  was  delayed  by  the  plaintifl',  who  suffered  his  judg- 

(o)  Cuvp.  727 


OF  PENNSYLVANIA.  29  i 

aient  to  sleep  eight  years;  and  it  being  to  their  discretion,  we      1808. 
were  forced  to  submit;   but  we  are  not  confined  to  that  applica-TT"         — 
tion,  either  by  the  rules  ot  law,  or  the  practice  in  Pennsijhania. 


V. 

Reiss. 


TiLGHMAN  C.  J.  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error,  who  was  plaintiff  in  the  court  below, 
brings  this  case  before  the  court  on  a  bill  of  exceptions. 

The  plaintiff's  objection  to  the  admission  of  the  evidence  is 
founded  on  this  principle,  that  nothing  can  be  pleaded  to  a  scire 
facias  in  bar  of  execution,  which  might  have  been  pleaded  to 
the  original  action.  The  principle  is  undoubtedlv  true;  but 
how  does  it  bear  upon  the  case  before  us?  The  original  judg- 
ment was  regularly  entered;  nor  had  the  defendant  any  thing  to 
say  in  bar,  if  the  plaintiff  had  brought  suit  on  the  obligation  in 
the  usual  manner,  instead  of  entering  judgment  by  confession, 
by  virtue  of  the  warrant  of  attorney  annexed  to  it.  The  cases 
cited  by  the  plaintifFs  counsel,  differ  from  this  in  one  material 
circumstance.  In  those  cases,  the  matter  relied  on  by  the  defen- 
dant would  have  been  a  bar  to  the  action,  at  the  time  the  judg- 
ment was  entered.  In  this  case,  the  defendant  had  no  plea  of 
which  he  could  avail  himself,  till  near  seven  years  after  the 
entry  of  the  judgment.  Why  then,  when  he  is  called  on  to  say 
whether  he  has  any  thing  to  allege  against  issuing  execution, 
may  he  not  shew,  that  in  consequence  of  something  which  has 
taken  place  since  thejndg-ment,  the  plaintiff's  right  to  an  execu- 
tion no  longer  exists?  It  is  to  be  remarked,  that  an  equitable 
defence  may  in  this  state  be  pleaded  in  a  court  of  law,  which  is 
not  the  case  in  En/fland.  1  very  much  doubt,  whether  t/iere  the 
defendant  could  have  had  any  relief  in  a  court  of  common  law. 
But  certainl)',  if  he  had  filed  his  bill  in  equity,  and  made  good 
the  matters  alleged  by  him  in  this  bill  of  exceptions,  he  would 
have  been  relieved  from  the  judgment.  Upon  this  ground, 
therefore,  it  appears  to  me  that  he  may  plead  these  equitable 
matters  to  a  scire  facias  on  the  judgment.  It  has  been  objected, 
that  his  proper  remedy  was  by  motion  to  the  court  below,  to 
open  the  judgment;  but  supposing  that  he  might  have-  had  that 
remedy,  it  does  not  follow  that  he  may  not  avail  himself  of  the 
same  defence  on  a  plea  to  the  scire  facias.  And  this  latter  mode 
ought  not  to  b<;  discouraged  l)y  this  Court;  because  the  j)arties 
labour  under  a  very  gi-eat  difficulty  in  applic  ations  to  the  court 


i?92  CASES  IN  THE  SUPREME  COURT 

1808.      below,  In  motion.  Those  motions  heinj.'j  an  appeal  to  the  d'tscri'' 
II   »  n  r.. ,  ''5'^  o^  t'^<-'  t^oiiit,  I  do  not  know  that  the  decision  can  be  ques- 
tioned  on  a  writ  of  error. 


V. 

Reiss. 


Upon  the  whole,  I  am  of  opinion  that  the  evidence  was  pro- 
perly admitted  in  the  court  below,  because  it  tended  to  prove 
matters  in  bar  of  the  ])laintiff's  execution,  which  had  arisen 
after  the  judgment. 

Judgment  affirmed. 


lb  292 

.niturdax.  Lane  against  Shreiner.  '-"    ^"i 

Maicl)  l-eth. 

The  dav  on  T^  ^^^'^  ^^^^  '^  verdict  was  given  for  the  plaintiff  in  the  Cir- 
viiich  the  J-  cuit  Court  of  Lam  aster  county  on  Ttiesdai/;  and  on  the 
\q^tI  ^\s  com-  '^^^^"'^'^if  following,  amotion  was  made  by  the  defendant  for 
piucd  as  iinea  rule  to  shew  cause  why  there  should  not  be  a  new  trial. 
<li\ s  which  That  Court  however  being  of  opinion  that  the  motion 
are  allowed  \vas  too  late,  because  the  day  on  which  a  verdict  is  given 
a  new  trial,   sbould  be  included  in  the  four  days,  refused  the  rule;  and  the 

defendant  appealed  to  this  court. 

The   decision  of  the    Circuit   Court  was  affirmed  without 

argument,  upon  the  authority  of  Biirrall  v.  Dubloh.  («) 

Hopkins  for  plaintiff,  E.  Tilghman  for  defendant. 

(r/)  2  Dall.  22'J. 


OF  PENNSYLVANIA.  2V3 

1808. 


Calhoun  for  the  use  of  Fitzimmons  and  another  Scmmhiy, 

.        March  2b\h. 

against  The  Insurance  Company  of  rcnnsylvania. 

COVENANT  on  a  poficy  on  goods  on  board  the  brig  yohii^  if  a  policy 
Barker  master,  from  Charleston  South  Carolina  to  Cadiz,  "",'^'^,^^2' 
15000  dolls,  at  15  per  cent.  The  foot  of  the  policy  contained  l;ukli)liia 
the  following  memorandum:  "  This  insurance  is  decku-ed  to  be  ^Ja;.pa,"f/of 
"•  made  on  sugars  not  discharged  from  on  board  the  above  ves-  AnKiican 
"  sel  at  Charleston,  where  she  brought  them  Irom  ^id'^^'^if^'^i^^toll^ovcd 
"  Warranted  bv  assured  to  be  American  property,  to  he  proved,  [f  required  in 

.,.',..  1^1         I  ■)■>       '  tilts  city  and 

"  if  required,  in  this  citij,  and  not  elsewhere.  ^^^^  ^/^^. 

Upon  the  trial  of  the  cause  before  Smith  J.  at  iV/.vi  Prius'^^liere,'  the 
in  Julif  1807,  the  material  facts  in  evidence  were  these.  On  the  ^^^jtieli  to 
8th  '^fiine  1800,  the  folm  sailed  upon  the  voyage  insured  from  vi'i'li'^'^^-^  tl'C 
Charleston,  where  at  that  tmie  the  blockade  ot  Cadiz  was  not  ^^avi-anty  not 
known.  On  the  16th  Julii  as  the  vessel  was  steering  for  Cadiz,  "^^\y  "gainst. 

,.  /  ,  ,  .  ,  ,     a  fbreiu-ii 

and  at  no  great  distance  trom  that  port,  the  captam  was  brought  p,„ulcnina- 

to  bv  the  Hector,  one  of  the  squadron  blockading  Cadiz  under"""  •'■'  ''"- 
.,■.,,,.,  ,  /Of-  i-micx' prc- 

Admiral  linker  ton,  was  warned  not  to  enter  Ladrz  on  account  .^,,^,^._  \^y^x^ 

of  the  blockade,  and  was  taken  on  board  the  Hector  with  his  a};:<nibt  a 

papers.   On  the  same  day  he  was  carried  on  board  the  admiral's  j,,,,,  );„.  .j^^^ 

ship,  but  was  afterwards  returned  to  his  own  vessel,  from  which  "*^*  "•'  "'"'«- 

,  ,,11  I  1  /v  1      •     I      ^'"" '''    ""' 

the  mate  and  four  hands  were  taken  out,  and  an  olhcer  and  eight  iigcnts  (lu- 
men put  on  board  of  her  with  orders  to  stay  by  the  fleet.  On  ""K /''^\^?.\- 
'  .  uj(c,'r  A  .ucli 

the  26th  Jiilij  the  brig's  papers  were  indorsed  "  warned  not  to  tiic  ncuirali- 

"  enter  Cadiz  or  St.  Lvcar  as  they  are  Ijlockaded,  hut  has  per-  *)  j'*  aU.  jrcd 

...  ,>    ,  ,  to  have  been 

^'' mission  to  go  to  am/  other  port.  Szvijtsure,  fulij  26tli  1800.  ,;,,(;.i,f.ti. 

B.  Halloivell,  Captain  of  tlie  Srviftsure,  one  of  the  ships  of  the  A  ussel 

1-  -I  i-  I  '*•"''  "'^"' 

''  blockading  squadron;'   i)ut  there  was  no  evidence  ol  tiiese  pa-  c;lia;.,  >xm\ 

pers  having  been  at  any  time  in  Captain  Bark(r\s  i)ossession  *"'  '^•'^'"- 
after  the  IGih  July,  or  that  he  saw  them  after  that  date  until  „„tii.i;  of  it's 

bcinj;-  in  a 
stale  of 
l)Iork:i(h',  and  within  a  sliort  distance  of  the  port  is  bidu^flit  to  by  tlic  l)iockaiHn{j 
hcpiadroii  and  warned  nr)t  to  enter  on  account  of  tlie  blockade;  t!\e  mate  and  four  haixU 
are  taken  out  of  her,  and  an  olVicer  anil  ei;;ht  men  put  on  board  w  itb  <>r«lcrs  to  slay  b>  tlic 
fleet.  Ten  <lays  afterwards  the  captain  is  taken  out  of  her  and  carried  tC)  the  Admiial  of 
the  squadron  wiio  savs  to  liiui,  "  We  ha\c  llioujjhls  of  .si-ttinn"  you  at  liberty,  and  in  ease 
"  we  tlo,  wliat  ])i)ii  will  \oh  i)roceed  for;"  '1  be  ca|)iaiii  replies,  "  In  cae  I  reri  ivy  no 
"  new  instructions  1  siiall  follow  my  old  ones."  '*  'i'bat  1  suppose  v,  ill  be  for  Cudiz!" 
"  Certainly,  unlcs.s  I  liave  new  orders."  Tliis  i«  not  an  attempt  lo  enlei-,  and  liier.  luic  no 
breach  of  bh)ckade  .'Jj//,rrr.  Whether  any  declaration  of;in  intention  to  enter,  amounts  to 
an  fiitrjtifit^ 


Ijy4  CASES  IN  THE  StPHEME  CuGRT 

1808.  ^^'*^>  ucrc  exhibited  in  the  Admiralty  at  (7i/>/Y7//(/;-.  1  he  mate 
Calhoun  ^^^^'^^''■"*'  declared  on  his  examination  in  that  court,  that  after 
^..  they  had  been  in  possession  of  the  British  about  ten  days,  the 
Ins.  Co.  papers  and  command  of  the  vessel  were  offered  to  Captain  Bar- 
Venn,  kcr,  which  he  refused,  because  his  vessel  had  been  taken  and 
his  hands  unjustifiably  removed.  On  the  27th  of  [fuly,,  until 
which  day  the  Captain  had  been  detained  on  board  the  brig,  he 
was  again  taken  on  board  the  Admiral,  who  addressed  him 
thus;  "  We  have  thoughts  of  setting  you  at  liberty;  and  in  case 
"  we  do,  what  course  will  )ou  steer?"  or  "  what  port  will  you 
*'  proceed  for?"  Captain  Barker  replied  "  In  case  I  receive  no 
"  new  orders,"  or  "  new  instructions,  I  shall  follow  my  old 
"  ones."  "  I  suppose  that  will  be  for  Cadiz^''  said  the  Admiral; 
to  which  the  Captain  answered  "  Certainly,  unless  I  have  new 
"  orders."  Sir  Richard  Bickerton  then  said  "  That  is  sufficient, 
"  I  shall  send  you  to  Gibraltar^  for  adjudication."  He  was  ac- 
cordingly sent  to  Gibraltar^  where  the  vessel  and  cargo  were 
libelled,  and  on  the  2Gth  Ausfiist  1800  the  decree  was  pro- 
nounced in  the  following  terms:  "  The  Judge  having  heard  the 
■■'  said  claimant  together  with  the  sundry  examinations  taken  in 
''  preparatoiy  in  the  cause,  and  the  papers  and  documents 
"  found  on  board  said  brig  at  the  time  of  the  capture,  and  de- 
••'  iivei'ed  in  to  the  register  upon  oath,  and  having  further  heard 
'■'•  the  parties  &c.  rejected  the  claim,  and  declared  the  brig  to 
"■•  have  been  cleared  out  for  Cadiz^  a  port  actually  blockaded  by 
"  the  arms  of  our  sovereign  lord  the  king;  and  that  the  mas- 
"  ter  of  the  said  Xrcx^  persisted  in  his  intention  of  entering  that 
■^  port,  after  warning  from  the  blockading  force  not  to  do  so, 
"  in  u  direct  breach  and  violatioji  of  the  blockade  thereby  noti- 
'■'■  fled;  and  pronounced  the  said  brig  and  cargo  by  virtue  there-- 
'•^  of  or  otherrvisc  subject  and  liable  to  confiscation,  and  con- 
*■'  demncd  the  same  as  g-ood  atid  larrful prize  to  our  sovereign 
"  lord  the  king." 

The  interest  of  the  plaintiffs  who  were  American  citizens,  and 
a  regular  abandonment,  were  proved  or  admitted;  and  the  jury 
found  a  verdict  for  a  total  loss,  subject  to  the  opinion  of  the 
rourt  upon  the  three  following  points; 

1 .  Whether  the  decree  of  the  Court  of  Vice  Admiralty 
r.f  Gibraltar  was  or  was  not  conclusive  evidence  of  the  facts 
set  forth  in  it.  And  if  conclusive,  whether  it  discharged  the 
underwriters. 


OF  PENNSYLVANIA.  :293 

"2.  Whethei- the  conduct  of  the  captain  m  the  bay  of  Cadiz      1808. 
in  relation  to  the  blockade,  did  or  did  not  amount  to  a  breach  Calhoux 
of  the  warranty  in  the  policy.  v. 

3.  Whether  the  captain's   conduct    amounted  to  barratry,    I"s.  Co. 
with  liberty  to  move  for  a  new  trial  on  the  ground  of  the  ver-       "cnn. 
diet  being  against  law  and  evidence. 

A  motion  for  a  new  trial  was  accordingly  made;  and  this 
question  and  the  points  above  stated  were  argued  by  Dallas 
and  Levif  for  the  plaintifls,  and  by  Raxvle  and  Lexvis  for  the 
defendants. 

1.  On  the  frst  point  the  plaintiff's  counsel  conceded  the 
principle  that  the  decree  of  an  Admiralty  Court'  binds  the 
property  for  ever,  as  in  Hughes  v.  Cornelius;  (a)  and  that  a 
condemnation  us  \ir\xt  g-etiet-alli^y  Saloucci  y.  Woodmass  (b)  or  as 
prize,  assigning  for  cause  such  an  act  or  omission  as  is  against 
the  law  of  nations  or  a  treaty  between  the  nations  of  the  cap- 
tor and  owner.  Carrels  v.  Kensington^  (c)  or  as  enemies'  pro- 
perty gcnerallif^  or  enemies'  property  for  the  want  of  neutral 
documents,  Gei/er  v.  Aguilar^  (d)  is  conclusive  upon  the  war- 
r:Lnty  of  neutrality.  But  they  insisted  that  it  is  not  conclusive 
upon  the  warranty  where  the  sentence  is  ambiguous,  Bernardi 
V.  Motteuxy  (e)  or  when  it  is  founded  upon  an  ordinance 
against  the  law  of  nations,  Bird\.  Appleton^  (J)  or  where  the 
grounds  of  the  sentence  contradict  the  conclusion,  the  condem- 
nation being  as  prize,  Pollard  v.  Bell,  (g)  or  contradict  a  treaty 
between  the  nations  of  the  captor  and  owner.  Price  v.  Bell,  (li) 
In  the  present  case  the  grounds  of  the  sentence  are  facts  which 
even  under  the  law  of  nations  are  not  a  breach  of  blockade,  and 
which  certainly  do  not  constitute  that  offence  under  the  treaty 
between  the  United  States  and  Great  Britain^  as  will  be  shewn 
under  the  second  point. 

But  whatever  may  be  the  conclusiveness  of  the  sentence  in 
a  cfjmmon  case,  the  special  clause  in  this  policy  prevents  that 
effect  altogether.  It  was  introduced  solely  with  that  view,  and 
it  has  been  construed  to  have  that  operation  by  Judge  Wash- 

(fl)  0  Shuxv.  2.'52.  (r)  Dous-  575. 

ib)  Park.  .>62.  (/)  ^  D.lJfE.  5C2. 

U)  %  D.i^f  E.  2.W  ig)^  Disc  £.434. 

frf)  7  n^St  y.  r-Hl  (/,>  l  Knit  663. 


296  c:ases  in  the  supreme  court 

1808.      ingtO)i  in  Calhraith  v.  Grade  decided  at  J/;/// sessions  1805.  (u) 
Cai  holV  ^^  n^^y 'j<-*  argued  that  the  design  of  the  clause  was  merely 
V.         to  allow  a  in-ooi'  of  propcrtif,  strictly  speaking,  in  opposition  to 
Ins.  Co,    the  sentence;  and  that  a  condemnation  for  unneutral  conduct, 
TViiii.      or  for  such  acts  as  amount  to  a  forfeiture  of  neutrality,  is  left  to 
its  legal  operation.  But  considering  what  the  sentences  of  Vice 
Admiralty  Courts  had  been,  such  a  construction  supposes  the 
assured  to  protect  himself  against  one  in  a  hundred  of  the 
probable  acts  of  injustice  of  those  courts,  aind  to  leave  himsell 
exposed  to  the  the  other  ninety  nine.  The  argument  moreover 
rcsidts  in  this  dilemma.   If  the  sentence  does  not  decide  the 
question  of  property,  it  does  not  forfeit  the  warranty;  if  it  de- 
cides the  question  of  property,  the  clause  applies. 

2.  The  facts  being  let  in,  they  negative  a  breach  of  the  war- 
ran  tv.  Thev  do  not  shew  even  an  ititcntion  to  break  the  block- 

((/)  Calbrai TH  1      Upon  tlie  ojjeninij  of" this  cause  on  tlie  defendant's 
v.  >  side,  tV»e  piaintirt",  the  assured,  objected  to  tlie  reading 

Gracie.  J  of  the  ])roceedings  in  the  Court  of  Vice  Admiralty  in 
^N'fTj  Providence,  in  consequence  of  a  clause  in  the  policy.  The  property  in- 
sured was  warranted  Avwrican  property,  with  this  proviso,  That  if  the  same 
shall  be  called  in  c/uestitm,  it  shall  be  si(_fficicrit  on  the  part  of' the  assured  to  prove 
in  any  Court  of  the  United  States  that  the  property  is  American. 

After  argument  upon  the  point,  the  opinion  of  the  Court  was  delivered  by 
AV'asui  NG'i  ox  J. 

Tliis  is  a  new  clause  \vhich  has  been  introduced  into  policies  of  insurance 
by  some  underwriters  within  a  few  years  past.  The  sooner  It  receives  a  con- 
struction the  better.  To  understand  it  we  mu::t  pursue  the  rule  adopted  as 
to  the  exposition  of  statutes.  We  must  find  out  w  liat  was  tlie  mischief  it  was 
intended  to  remedy,  and  then  the  extent  of  the  remedy.  Tlie  mischief  was 
that  the  sentence  of  a  Foreign  Court  of  Admiralty  condemning  a  vessel  as 
enemies'  projjerty  or  as  lawful  iirizc,  was  and  is  considered  universally  in 
Kngltind,  and  has  been  so  decided  in  some  of  the  states,  as  conclusive  proof 
of  that  fact  against  the  assured  .so  as  to  forfeit  his  warranty  of  neutrality; 
and  this  too  though  he  should  be  al)le  to  prove  the  falsity  of  the  conclusion. 
The  remedy  was  to  meet  and  correct  this,  which  often  in  former  wars,  and 
still  more  in  those  which  have  lately  happened,  was  a  crying  evil.  We  have 
all  heard  of  the  conduct  of  the  West  India  Courts  of  Vice  Admiralty,  and  the 
shameful  abandonment  of  all  correct  principles  which  has  disgraceil  their 
decisions.  The  assured  did  not  chuse  that  their  property  when  really  neutral, 
and  which  they  could  prove  to  be  so,  should  be  declared  ollurwise  in  conse- 
•  juence  of  a  sentence  of  those  Courts.  But  they  never  meant  to  go  further, 
and  it  would  be  improper  to  have  done  so.  Tiiey  are,  riofi^ith^tandin^^  the  sen- 
tence, tti  be  at  liberty  to  vindicate  the  truth  of  their  warranty  But  the  under- 
writer may  combat  that  fact  by  reading  the  proceedings  of  the  Foreign 
Coui  I  of  Admiralty  as  evidence,  but  not  as  conclusive  evidence.  Indeed  they 
may  often  be  essentially  neressarj'  to  prove  the  loss. 


OF  PENXSYLVAXIA.  297 

aje;  for  the  language  of  the  Captain,  upon  which  alone  the      1808. 
captors  and  the  Court  of  Vice  Admiralty  proceeded,  though  c^ljjovn 
insidiously  extorted,  to  furnish  a  ground  of  detention,  and  there-         v. 
fore  accoi-ding  to  the  case  of  the  Jlercuriiis,  («)  entitled  to  pe-    ^^^-  Co. 
culiar  indulgence,  does  not  when  construed  with  the  utmost 
severity  amount  to  such  an  intention.  But  an  intention  is  not 
a  breach  of  blockade  by  the  law  of  nations,  or  the  treaty. 

By  the  law  of  nations  there  must  be  an  attempt  to  enter,  or 
there  is  no  offence,  Faitel  B.  iii.  c/i.  vii.  iec.  117;  and  the  great- 
est extent  to  which  constructive  breaches  of  blockade  have 
bee«  carried,  is  in  those  cases  which  treat  the  sailing'  with  in- 
tention to  break  the  blockade  as  an  overt  act,  an  attempt.  (Z*)  In 
this  case  however  both  the  ingredients  of  this  kind  of  attempt 
are  wanting.  In  the  first  place  notice^  which  is  implied  in  the 
intention,  and  which  the  Captain  never  received  until  he  was 
detained  by  the  squadron;  and  in  the  next  place  the  act  of  sail- 
inif^  which  never  was  in  his  power  after  the  notice  was  given. 
The  onlv  case  in  which  there  is  an  intimation  that  an  i/itaition 
may  break  a  blockade,  is  that  of  the  Henrick  and  Maria  (c)  in 
which  the  vessel  was  restored.  There  is  at  the  same  time  in 
that  decision,  something  very  equivocal  in  the  words  of  Sir 
William  Scott;  for  in  one  place  he  speaks  oi  an  adherence  to  a 
first  intention  as  subjecting  a  ship  to  the  penalty;  and  in  another 
as  though  that  would  attach  only  where  the  Captain's  conduc,t 
amounts  to  an  obstinate  perseverance. 

Under  the  treaty  the  case  is  still  plainer.  The  18th  article 
recites  that  "  whereas  it  frequently  happens  that  vessels  sail  for 
"  a  port  or  place  belonging  to  an  enemy  without  knowing  that 
"  the  same  is  either  besieged,  blockaded,  or  invested,  it  is 
*•'  agreed  that  every  vessel  so  circumstanced  may  be  turned 
*'  axvaij  from  such  port  or  place,  but  she  shall  not  be  detained, 
♦'  nor  her  cargo,  if  not  contraband,  confiscated,  unless  after  no- 
"  tice  she  shall  attain  attempt  to  enter ^"^  (<-/)  So  far  as  the  treaty 
interferes  with  tiie  genera!  law,  the  latter  must  yield.  'Hie  plain 
unequivocal  language  of  the  former  requires  that  there  must  be 
an  actual  turninif  aivaij^  and  then  an  attempt^  before  there  is  a 
breach  of  blockade;  and  such  has  been  the  decision  in  N^eii- 

(a)  1  Rol>.  70.  (c)  1  Hob.  123. 

(b)  Columhia,  1  Rob.  130.  (/)  2.  U.  S.  Lav.-s.  4R4. 
Vol.  I.                                         2  P 


Pcnn. 


298  CASES  IN  TilK  SUPKEMl-:  COURT 

1808.      i'ork  in  the  very  case  ol'  ilie  Columbia^  Liotardx.  Graves.,  (ci) 

~7r ,    "   '~  and  in  Voa  and  Graves  v.  Vnttctl In.s.  Co,  (b)    The  indorsement 
Calhoun  _  ^  -' 

X,,  on  the  papers  of  26th  July  1800  shews  of  itself  that  there  had 
Ins.  Co.  been  so  far  no  breach  of  blockade,  and  on  that  day  the  vessel 
was  sent  to  Gibraltar.,  the  Captain  never  having  had  his  papers 
after  his  detention,  and  never  being  told  that  he  was  at  libert)'^ 
to  depart  and  go  elsewhere.  The  mate  it  is  true  savs  the  com- 
mand was  offered  to  the  Captain,  and  that  he  refused  it  in  con- 
sequence of  the  delay  and  loss  of  hands.  This  was  probably 
hearsay,  as  the  mate  was  one  of  those  who  were  taken  out;  but 
the  facts  were  a  justification  to  the  Captain;  the  squadron 
should  have  turned  him  away  at  once. 

3.  If  however  there  was  a  breach  of  blockade  by  what  is 
called  the  obstinate  adherence  of  the  Captain  to  the  inten- 
tion of  entering  Cadiz.,  it  was  barratry.  Judge  Buller  was  of 
opinion  in  Saloucci  v.  Johnson  (c)  that  if  a  resistance  to  search 
■was  a  forfeiture  of  neutrality,  it  would  be  barratrous;  and  there 
is  no  doubt  that  the  neutrality  of  a  vessel  and  cargo  is  forfeited 
by  a  breach  of  blockade.  It  is  a  breach  of  trust  to  the  injury  of 
the  owners,  and  it  is  necessarily  ex  vialcficio  or  malo  animo.,  be- 
cause it  is  illegal  and  certainly  injurious  to  the  owners.  That 
it  is  not  for  the  Captain's  benefit  is  immaterial;  this  is  a  mere 
circumstance  to  shew  fraud  in  an  ambiguous  case;  but  is  not 
wanting  in  a  case  where  the  law  will  imply  fraud  from  the  ille- 
gality and  the  tendency  of  the  act.  Earl  v.  Rorvcroft.  (d)  The 
breach  of  blockade  is  stronger  than  sailing  out  of  port  without 
paying  duties.  Knight  v.  Cambridge.,  (r)  or  than  smuggling, 
Havelock  v.  Hancill;  (y)  for  in  each  case  there  may  be  some 
benefit  to  the  owner;  whereas  here  the  act  is  fatal  to  his  inte- 
rests,  and  comes  up  to  all  the  cases  upon  barratry.  Vallejo  v. 
Wheeler^  {g)  Robinso?i  v.  Ewer.,  (h)  Hood''s  Executors  v.  Nes- 
bit^  (Ji)  Moss  V.  Bijrom.  (^) 

For  the  defendants  It  was  argued  on  the  first  point  that  the 
admissions  of  the  plaintiff's  counsel  put  the  question  at  rest  in 
the  present  cause;  for  the  principle  which  they  recognise,  in 

(«)  1  K.  r.  Cues  in  Error  7.  (/)  3  D.isTE.  277- 

(i)3  Cah,es^26,  (^)  Covjfi.  141. 

(c)  Pari.  365.  (h)  I  D.  iSf  £■  127- 

(./)  8  East  no.  (/)  2  Da!i.  ^37. 

(e)  8  Mod  230.  Oitft.  155.  (^)6I3.fS'E.  3r9. 


OF  PENxVSYLVANIA.  299- 

adopting  certain  of  the  English  authorities  is,  that  the  decree  1808. 
6f  a  Court  of  Admiralty  is  conckisive  as  to  all  the  matters  it  (^j^lhoun 
directly  decides;  those  authorities  proceeding  upon  no  other  v. 
principle.  There  is  as  between  the  insurer  and  insured  an-  ^"s-  ^o. 
other  consideration,  always  as  material  as  the  conclusiveness  ot 
the  sentence,  that  is,  whether  the  matters  decided  do  or  do  not 
falsify  the  warranty;  zndhenct  in  Be  mar  di  v.  Motteux^  Bird 
V.  Appleton^  Pollard  v.  Bell  and  Price  v.  Bell,  there  was  a  reco- 
very upon  the  policy,  not  because  the  sentence  was  not  conclu- 
sive as  to  what  it  directly  decided,  but  because  there  was  no- 
thing directly  decided  by  the  sentence  that  falsified  the  warrant)-. 
But  there  is  not  a  case  to  be  found  in  which  an  English  court 
has  ever  questioned  the  decision  or  conclusion  of  a  Court  of 
Admiralty  on  any  point  either  of  law  or  fact  in  a  case  within  its 
jurisdiction.  Lothian  v.  Henderson,  {a)  It  is  a  doctrine  of  the 
common  law  and  has  been  repeatedly  acknowledged  in  Pemi' 
sylvania^  that  no  court  can  in  a  collateral  way  review  the  pro- 
ceedings of  a  tribunal  which  had  jurisdiction  of  the  subject  mat- 
ter; and  that  where  a  matter  comes  to  be  tried  in  a  collateral 
way,  the  decree  of  ant/  court  of  competent  jurisdiction  is  con- 
clusive evidence  of  such  matter  while  it  remains  unreversed. 
Penhalloxv  v.  Doane  (h),  Jones  v.  Boxu  (c),  Bidl  N.  P,  244.  Al- 
len v.  Dundas  (d)^  Papelje  v.  Emery,  (r)  That  at  this  day  the 
law  of  Enifland  deems  the  sentence  of  an  Admiralty  Court  con- 
clusive as  to  every  point  it  directly  decides,  cannot  be  question- 
ed; not  one  of  the  twelve  judges  in  Lothian  v.  Henderson  inti- 
mated a  doubt  of  it,  although  one  or  two  of  them  expressed  a 
regret  that  in  its  application  to  French  decrees  the  principle  was 
productive  of  hardship.  Such  also  is  the  law  of  this  state  since 
the  case  of  Drmpsnj  v.  Thr  Insurance  Co.  of  Peunsi/hania  (/) 
in  which  the  point  was  decided  by  this  Court,  and  which  is  still 

(rt)  3  Bm.  ISf  Pull  516.  (J)  3  Z)  Isf  E.  129. 

{b)  3  Dall.  185.  I  Dull.  220.  (e)  2  I) all.  231. 

(c)  Cartlt.  225. 

(/■)Sinrc  the  argument  in  lli'ij  cause,  llic  c.ise  of  Dcm/isrj  asjij^ncc  of 
Mrmvii  V.  "J'hc  Insurance  Cuinfxiny  of  Fcnmyhaniu  lias  liccn  (iccidcd  in  llic 
HIkIi  Ciiurt  ofErrtiiH  and  Appeals. 

It  was  an  artif)n  of  rovcnant  on  a  ])oliry  on  ^^oods  on  board  tl<c  i)rifj  lictsy 
at  anil  fiom  Pluladclphiit  to  JJonlcaiix  ■dU([\)a.ck,ii>arriintcd  American  prnjicrty, 
and  iliat  the  vc-tscl  was  an  American  bottom.  The  brijj  was  captnred  by  a 
British  ship  of  war  and  carried  into  the  island  of  licrmudat,  where  vessel  and 


Pcnn. 


30(5  CASES  IN  THE  SUPREME  COURT 

1808.      *^*  \^w,  although  a  writ  of  error  is  pending  before  the  court  of 
"CALnooTl^st  rcsorli  The  idea  that  the  sentence  is  not  conchisive  if  it 
X'.         decides  in  opposition  to  the  law  of  nations,  is  altogether  new; 
Ins.  Co.    if  it  were  just,  the  sentence  would  in  no  case  he  conclusive,  for 
the  instant  you  examine  into  the  propriety  of  it,  you  try  the 
matter  over  again,  and  the  conclusiveness  of  the  decree  van- 
ishes. Then  how  far  does  the  present  decree  go,  what  does  it 
decide?  JNIost  clearly  it  decides  that  the  Captain  committed  a 
breach  of  blockade,  which  it  is  conceded  is  a  breach  of  neutrali- 
t}-,  and  therefore  a  forfeiture  of  the  warranty. 

The  special  clause  was  not  designed,  for  the  case  that  has 
happened.  The  meaning  of  it  is  that  the  property  only  is  to  be 
proved  here;  for  independent  of  the  warranty  the  insured  was 
bound  to  conduct  himself  as  a  neutral;  and  the  clause  must 
therefore  have  been  introduced  in  consequence  of  the  warranty 
and  merely  to  prevent  its  being  falsified  by  an  Admiralty  sen- 
cargo  were  acquitted;  but  upon  an  appeal  this  sentence  so  far  as  respected 
the  cargo  svas  reversed,  and  the  same  condemned  as  belonging  to  the  ene- 
mies of  the  erown  of  Great  Britain,  and  by  virtue  thereof  or  othcnvise  good 
and  lawful  prize. 

The  cause  w  as  tried  in  Bank  at  December  term  1804,  when  the  record  of 
the  Vice  Admiralty  at  Bermudas,  and  the  final  sentence  of  the  Lords  Com- 
missioners of  Appeal,  were  given  in  evidence.  The  plaintifTtlien  oRercd  to 
prove  that  the  cargo  at  tlie  time  of  the  capture  and  condemnation  belonged 
soley  to  Brcnvn,  who  was  a  native  citizen  of  the  United  States  residing  there. 
This  evidence  was  objected  to  by  tlie  defendants,  because  the  proceedings  in 
llie  Court  of  Vice  Admiralty  and  the  final  sentence  of  the  commissioners 
were  conclusive  evidence  that  the  cargo  was  at  the  time  of  the  capture  the 
property  of  enemies  to  the  crown  of  Great  Britain,  and  not  American  proper- 
ty. Of  this  opinion  was  the  Court,  who  overruled  the  evidence;  and  tlie  jury 
found  for  the  defendants.  A  bill  of  exceptions  was  tendered  and  allowed,  and 
the  record  carried  by  Writ  of  Error  to  the  High  Court  of  Errors  and 
Appeals. 

In  that  Court  the  case  was  twice  argued,  first  at^w/yterm  1807,  and  again  at 
yuly  term  1808.  Upon  the  first  argument  two  questions  were  made:  1.  Whe- 
ther the  sentence  of  the  Lords  Commissioners  of  Appeal  decided  directly 
such  facts  as  falsified  the  warranty;  and  2-  If  it  did,  whether  it  was  conclu- 
sive evidence  of  those  facts  between  the  parties  to  this  suit.  Upon  the  first 
argument  the  Court  declared  their  opinion  that  the  facts  decided  by  tlie  sen- 
tence did  falsify  the  warranty;  and  the  second  argument  was  therefore  con- 
fined to  the  general  question  "  Whether  tlie  sentence  of  a  foreign  Court  of 
Admiralty,  condemning  property  as  prize,  is  conclusive  not  only  as  to  its 
direct  effects,  but  also  as  to  ihc  facts  directly  decided  by  it."  Of  the  aflirmative 
opinion  were  Presidents  Rush,  Roberts,  H.\milton,  Yoi'ng  and  Wii.son; 
President  Cooper  contra.  Accordingly  the  Judgment  of  this  Court  was 
Affirmed. 


OF  PENNSYLVANTIA.  3Q1 

tence  upon  the  very  point  of  property.   In  Calhraith  v.  Grade      IgOS. 
the  condemnation  was  as  enemies'  property.  Calhoun 

2.  But  if  the  facts  are  let  in,  they  shew  a  breach  of  the  war-  v. 
ranty.  The  treatv  between  the  United  States  :in(\  Great  Britain  Ins.  Co 
is  in  the  matter  of  blockade  in  affirmance  of  the  lifSVaf  nations;  *^"'^ 
it  introduces  no  new  principle.  An  attempt  is  necessar)^  in  all 
cases;  but  the  question  is,  what  is  an  attempt?  Under  the  treaty 
there  must  in  certain  cases  be  a  turning  away;  but  what  is  that? 
That  there  should  be  a  physical  turning  away  by  the  blockading 
squadron  is  absurd;  the  Captain  should  turn  himself  away.  The 
meaning  of  the  phrase  must  be  ascertained  by  its  object.  The 
treatv  applies  only  to  cases  in  which  there  was  no  notice;  and 
its  first  provision  is  therefore  for  notice,  which  is  signified  by 
the  terms  turning-  axvay^  or  what  was  practised  by  the  squadron 
at  Cadiz^  xvar7iing  off'.  The  Captain  was  then  turned  away  on  the 
16th  July  after  he  had  once  attempted  to  enter,  being  as  is  said 
ignorant  of  the  blockade.  But  what  shall  amount  to  agaiji  at- 
tempting X.o  enter?  It  cannot  be  that  it  means  only  an  actual 
sailing  toward  the  blockaded  port;  for  if  the  Captain  hovered 
about  the  port  without  taking  a  direction  to  one  which  he 
might  lawfully  enter,  it  would  be  a  clear  attempt.  This  attempt 
would  consist  in  his  not  going  away  according  to  his  duty;  and 
remaining  on  the  spot  would  be  the  overt  act.  If  the  possession 
of  the  vessel  is  offered  to  him  that  he  may  go  elsewhere,  and  he 
refuses  to  take  it  but  upon  the  threat  of  going  to  the  prohibited 
port,  here  is  an  attempt  of  the  same  kind;  and  his  refusal  to  go 
away  with  the  vessel  is  the  overt  act.  Case  of  the  Apollo,  (a) 
That  Captain  Barker  refused  his  vessel  and  papers  with  the 
liberty  to  go  to  any  but  the  blockaded  ports  is  sworn  by  the 
mate;  and  that  something  of  this  kind  passed  may  be  inferred 
from  the  questions  put  to  him  by  the  Admiral,  which  cannot 
be  accounted  for  l)Ut  upon  the  supposition  of  some  previous 
offer,  refusal,  and  threat.  On  the  27th  of  July  however,  eleven 
days  after  notice,  he  makes  his  deliberate  declaration  that  if  he 
is  dismissed  he  will  go  to  Cadiz;  for  such  is  the  obvious  mean- 
ing of  his  words.  The  old  orders  which  he  threatened  to  follow 
if  he  did  not  gcrnew,  were  clearly  those  of  his  owners,  as  they 
led  to  Cadiz^  and  those  of  the  Admiral  another  way;  and  the 
impossibility  of  getting  new  ones  at  that  time  from  his  owners, 

(«)  5  Rob.  25$.  * 


302  CASES  IN  THE  SUPREME  COURT 

1 808.      is  a  proof  of  the  inveterate  obstinacy  with  which  he  persevered 

~7,  in  the  iirohihitcd  track.  This  conversation  and  the  refusal  were 

Calhoun  ' 

x>,         a  clear  attempt;  and  there  was  therefore  a  breach  of  blockade 
Ins.  Co.    under  the  treaty. 
I  enn.  «^  T\\it  Captain's  conduct  was  not  barratry;  it  was  grossly 

improper,  but  for  this  impropriety  the  owners  must  answer,  as 
they  are  bound  to  provide  a  person  of  competent  skill.  Law  v. 
Holl'mgatuortli.  (a)  To  constitute  barratry'  there  must  be  some 
fraud  or  knavery  or  other  criminal  act  practised  against  the 
interest  of  the  owners.  Hood  v.  Nesbit,  (J))  In  this  case  the 
Captain  was  to  derive  no  benefit;  and  this  is  a  powerful  cir- 
cumstance to  negative  fraud.  If  a  breach  of  blockade  were  de- 
signed for  the  benefit  of  the  owners,  surely  it  would  not  be  bar- 
ratry; Case  of  the  Adonis;  and  it  is  not  possible  that  here  it 
could  be  designed  for  any  thing  else.  If  fraud  is  to  be  presum- 
ed from  the  illegality  of  the  act,  it  is  barratry  to  pursue  the  ex- 
clusive interest  of  the  owners  through  such  an  act;  this  can- 
not be  law.  There  must  be  something  criminal  in  the  Captain's 
conduct,  or  there  must  be  the  malus  animus  directed  against 
the  owner;  in  this  case  there  was  neither.  In  Moss  v.  Byrom 
the  Captain  committed  piracy;  and  in  Earle  v.  Rowcrojt  he 
sold  arms  and  ammunition  to  the  enemies  of  his  country. 

TiLGHMAN  C.  J.  This  cause  arises  on  a  policy  of  insurance 
on  the  cargo  of  the  brig  John^  Richard  Barker  master,  at  and 
from  Charleston^  South  Carolina^  to  Cadizy  for  15,000  dollars, 
premium  15  per  cent.  At  the  foot  of  the  policy  is  the  following 
agreement:  "  This  insurance  is  declared  to  be  made  on  sugars, 
"  not  discharged  from  on  board  the  above  vessel  at  Charleston^ 
"  where  she  brought  them  from  Havanna^  warranted  by  as- 
••'  sured  to  be  American  property,  to  be  proved,  if  required,  in 
"  this  city,  and  not  elsewhere."  The  vessel  was  taken  on  her 
voyage  by  Vi  British  squadron  blockading  Cadiz^  sent  to  Gibral- 
tar^ and  condemned,  together  with  the  cargo,  for  breach  of  the 
blockade  of  Cadiz. 

The  cause  was  tried  at  Nisi  Prius  before  Judge  Smith  last 
July^  when  a  verdict  was  found  for  the  plaintiffs  for  20,267 
dollars  and  60  cents,  subject  to  the  opinion  of  this  Court,  on 
the  three  following  points.  * 

(^0  7  I).  (S-  K.  160.  {b)  2  DcUl.  137. 


OF  PENNSYLVANIA  30 


wj 


1.  Whether  the  decree  of  the  court  of  Vice  Admiralty  at      1808. 
Gibraltar^  is  or  is  not  conclusive   evidence  of  the  facts  set  Qy^LHOUN 
forth  in  it;  and  if  conclusive,  whether  it  discharges  the  under-         xk 
writers.  Ins.  Co. 

2.  Whether  the  conduct  of  Captain  Barker  in  the  Bay  of      P^"""- 
Cadtz^  in  relation  to  the  blockade,  did  or  did  not  amount  to  a 
breach  of  the  warranty  in  the  policy. 

3.  Whether  the  Captain's  conduct  amounted  to  barratry. 
With  liberty  to  move  for  a  new  trial,  on  the  ground  of  the 
verdict  being  against  law  and  evidence.  Under  this  liberty  a 
motion  for  a  new  trial  has  been  made. 

It  will  be  necessary  to  state  the  material  facts  which  were  • 

given  in  evidence.  On  the  8th  June  1800  the  brig  sailed  from 
Charleston^  where  the  blockade  of  Cadiz  was  not  then  known; 
nor  does  it  appear  that  the  Captain  knew  of  it  until  he  received 
notice  in  the  Bay  of  Cadiz^  in  the  manner  which  I  shall  here- 
after mention.   On  the  morning  of  the   15th  or  16th  Jidij^ 
steering  for  Cadiz^  and  not  many  leagues  distant  from  the 
shore,  Captain  Barker  descried  two  large  ships,  one  of  which 
fired  a  p^un  at  him;  he  stood  on  his  course  with  all  sails  set.  In 
about  an  hour  he  was  overtaken  by  the  Hector,  one  of  the 
squadron  forming  the  blockade  of  Cadiz  under  Admiral  Sir 
Richard  Bickerton;  he  then  received  notice  not  to  enter  Cadiz, 
which  was  blockaded,  and  was  taken  out  of  his  vessel,  and 
carried  on  board  the  Hector,  with  his  papers  and  letters.  The 
same  day  he  was  carried  on  board  the  Admiral's  ship;  the 
mate  and  four  hands  were  taken  out  of  the  brig,  and  an  officer 
and  eight  men  put  into  her,  with  orders  to  detain  her  and 
stay  with  the  fleet.  The  Captain  was  detained  as  a  prisoner  on 
board  the  brig;  and  thus  things  remained  until  the  2rth  July^ 
when  he  was  carried  on  l>oard  the  Admiral's  ship.  The  Admi- 
ral said  to  him,  "  We  have  thoughts  of  setting  you  at  liberty: 
"  in  that  case  what  course  will  you  steer?  or  what  port  will  you 
"  go  to?"  The  Captain  answered,  ''  In  case  I  receive  no  new 
"  order,  or  in  case  I  receive  no  new  instructions;"  for  in  that  rf  - 
spect  the  Captain's  protest  and  his  answer,  when  examined  on 
interrogatories  in  the  Court  of  Admiralty,  difltr:  *'  I  shall  fol 
"  low  my  old  ones."  The   Admiral  replied,  "  that  will  bo,  I 
"  suppose,  for  Cadiz;''''  to  which  the  Cajitain  answered,  "  ccr 
"  tainly,  unless  I  liavc  new  orders."  Wliereupon  the  Admiral 
said,  "  that  is  sufRcicnt;   I  shall  send  )  ou  to  Gibraltar  for  adju- 


304.  CASES  IN  THE  SUPREME  COURT 

1808.      *'  dication."  Here  again  the  examination  of  the  Captain  difFers 

r  *i  iiniN  something  from  his  protest:  in  the  lormer  it  is  thus  expressed: 

V,         "  The  Captain  said  that  in  case  he  got  no  new  instructions,  he 

Ins.  Co.    "  should  proceed  by  his  old  ones,  and  go  to  Cadiz;^^  and  the 

Fcnn.      Admiral  then  told  him,  he  must  send  him  into  Gibraltar  for 

adjudication. 

On  the  26th  yultj  1800,  an  indorsement,  as  follows,  was 
made  on  some  of  Captain  Barker^s  papers:  "  Warned  not  to 
"  enter  Cadiz^  or  St.  Liicar,  as  they  are  blockaded;  but  has 
"  permission  to  go  to  any  other  port."  But  it  does  not  appear 
that  the  papers  were  ever  returned  to  Captain  Barker  after 
they  were  taken  from  him  on  the  16th  jfuly^  or  that  he  ever 
saw  them  again,  till  they  were  exhibited  by  the  captors  in  the 
Court  of  Admiralty  at  Gibraltar.  Christopher  Bennet^  the 
mate  of  the  brig,  declared  on  his  examination,  that  after  they 
had  been  in  possession  of  the  Hector  about  ten  days,  the  papers 
were  offered  to  the  master,  and  the  command  of  his  vessel^ 
which  he  refused,  because  he  thought  the  captors  had  unjusti- 
fiably detained  him,  and  removed  four  men  from  the  brig,  on 
5oard  the  Hector  and  Incendiary. 

On  the  26th  August  1800,  the  judge  of  the  Court  of  Vice 
Admiralty  at  Gibraltar  pronounced  his  decree  of  condemna- 
tion. After  declaring  the  said  brig  to  have  been  cleared  out  for 
Cadiz^  a  port  actually  blockaded,  and  that  the  master  persisted 
in  his  ititention  of  entering,  after  warning  from  the  blockading 
force  not  to  do  so,  in  direct  breach  and  violation  of  the  block- 
ade thereby  notified,  he  pronounced  the  said  brig  and  her  cargo, 
and  the  master's  private  adventure,  by  virtue  thereof  or  other- 
rvise  subject  to  confiscation,  and  condemned  the  same  as  gooJ 
and  lawful  prize. 

Upon  the  first  question,  whether  the  decree  of  the  Court  of 
Vice  Admiralty  is  conclusive,  I  shall  give  an  opinion  founded 
on  the  special  circumstances  of  this  case,  without  entering  into 
the  general  question  of  the  conclusiveness  of  the  sentences  of 
loreign  Courts  of  Admiralty.  It  is  now  well  understood,  that  a 
warranty  of  Arnericati  property,  "  to  be  proved  if  required  in 
"  the  city  of  Philadelphia  and  not  elsewhere,"  is  to  be  so  con- 
strued, that  in  case  any  dispute  arises  whether  the  property 
was  American,  and  as  such  entitled  to  protection,  or  whether  in 
the  circumstances  under  which  it  stood  at  the  time  it  was  cap- 
tured, it  was  to  be  considered  as  the  property  of  an  enemv. 


or  PENNSYLVANIA.  305 

-.uch  dispute  is  to  be  decided  by  proof  in  the  city  of  Philadel-      1808. 

phia.  A  warrantv  oi  American  piopertv  is  a  contract  not  only  V> 

\       .  •;  ,  Calhoun 

that  It  was  American  property  at  the  time  it  was  shipped,  but         -j, 

that  it  should  not  lose  that  character  by  any  act  or  omission    Ins.  Co. 

of  the  insui-ed  or  his  agents,  during  the  voyage.  Now  a  ques-      Pemi. 

lion  has  arisen,  whether  the  property  has  not  lost  its  American 

character,  by  an  attempt  to  break  a  blockade.  It  is  a  question 

springing  out  of  the  warranty.  By  what  proof  then  is  it  to  be 

decided?  The  answer  is  plain:  by  proof  satisfactory  to  a  court 

and  jury  in  this  city,  and  not  elsewhei-e;  not  by  the  opinion  of 

any  foreign  court,  which  it  was  the  very  object  of  this  warrant}' 

to  exclude.  In  this  case,  therefore,  the  decree  of  the  Court  of 

Vice  Admiralty  at  Gibraltar^  cannot  be  received  as  conclusive 

evidence  that  the  property  was  not  Afnerican. 

2.  But  was  the  conduct  of  Captain  Barker  in  the  Bay  of 
Cac/izy  such  as  to  throw  off  the  American  character,  and  forfeit 
the  protection  due  to  American  property?  Did  he  act  in  viola- 
lion  of  the  law  of  nations,  or  of  the  treaty  between  the  United 
States  and  Great  Britain?  It  is  unnecessary  to  speak  particu- 
larly of  the  Law  of  Nations,  because  the  treaty  is  in  exact  con- 
foriTiity  to  it.  One  of  the  passages  in  the  18th  article  of  the 
treaty,  is  as  follows:  "  Whereas  it  frequently  happens  that 
**  vessels  sail  for  a  port  or  place  belonging  to  an  enemy,  with- 
''  out  knowing  that  the  same  is  either  besieged,  blockaded,  or 
*'  invested,  it  is  agreed  that  every  vessel  so  circumstanced, 
^'  may  be  turned  away  from  such  port  or  place,  but  she  shall 
"  not  be  detained,  nor  lier  cargo,  if  not  contraband,  be  confis- 
**  cated,  unless  after  notice  she  shall  attain  attempt  to  enter." 
The  case  supposed  in  the  treaty  is  the  very  case  we  arc  decid- 
ing; the  case  of  a  vessel  which  sailed  from  Charleston  with- 
out knowledge  of  the  blockade  of  Cadiz;  and  how  was  she 
treated?  She  was  not  turned  axvaij^  according  to  the  treaty,  but 
detained^  in  express  violation  of  it.  Did  she  attempt  to  enter 
again  after  notice?  By  no  means.  A  conversation  took  place 
lietwcen  Captain  Barker^  and  the  Commander  of  the  British 
squadron,  in  wiiicli  the  lormer  made  use  of  an  expression, 
which,  to  make  the  most  of  it,  was  l)ut  equivocal;  and  this  is 
set  up  for  an  obstinate,  determined,  resolution  to  break  the 
blockade.  It  may  be  questioned  whether  any  words  would  be 
a  breach  of  the  treaty,  since  an  attempt  implies  an  action.  But 
granting,  for  argument's  sake,  that  under  a  liberal  construe - 

Vol..  I.  2  Q 


306  CASES  IN  THE  SUPREME  COURT 

1808.      tioii,  a  clear  and  positive  declaration  of  an  intention  to  enter  a 

"TT""       ~  blockaded  port,  might  amount  to  a  breach  of  the  treaty,  I  think 

-,.         the  evidence  in  this  case  falls  far  short  of  the  proof  of  such 

Ins.  Co.    decided  intention.   I  am  far  from  being  satisfied  that  it  was 

Penn.  Captain  Baricr^^  intention  to  attempt  to  enter  Cadiz^  unless 
he  received  permission  to  do  so  from  Sir  /■Richard  B'jckerton. 
When  he  said  to  the  Captain,  "  we  have  some  thoughts  of 
*'  setting  you  at  liberty,  in  that  case,  what  course  will  you 
*'  steer?"  the  Captain  might  have  supposed,  that  the  Admiral 
meant  liberty  to  go  where  he  pleased;  and  understanding  him 
so,  the  other  words,  "  unless  I  receive  7iew  orders^  or  7iexv 
"  instructions^^''  might  intend  orders  or  instructions  from  the 
Admiral:  for  the  Captain  could  have  no  reason  to  suppose,  that 
just  at  that  moment  he  should  receive  orders  or  instruction.^ 
from  his  oxvners.  According  to  the  evidence,  the  Admiral 
appears  to  have  put  this  question  with  a  view  of  taking  advan- 
tage of  the  answer:  and  the  conversation,  taken  altogether,  is 
too  slight  and  too  obscure,  to  warrant  the  strong  conclusion 
drawn  from  it,  that  the  Captain  was  determined  to  break  the 
blockade.  I  cannot  say  that  his  conduct  amounted  to  a  breach 
of  the  warranty  in  the  policy. 

3.  The  opinion  which  I  have  given,  renders  it  unnecessary 
to  say  any  thing  on  the  third  point. 

Upon  the  whole  of  the  case  my  opinion  is  that  sufficient 
cause  for  a  new  trial  has  not  been  shewn,  and  that  judgment  be 
entered  for  the  plaintiff. 

Yeates  J.  I  feci  it  unnecessary  to  decide  In  the  present  in- 
stance, how  far  the  decree  of  a  foreign  Court  of  Admiralty  is 
condnsivc^  on  abstract  principles,  as  between  the  insurer  and  in- 
sured. It  is  sufficient  to  observe  that  the  plaintiff's  counsel  ful- 
ly admit,  that  a  sentence  of  condemnation  in  a  course  of  pro- 
ceedings in  rem  binds  the  property,  and  that  where  it  has  been 
condemned  as  cnemifs  property,  or  as  pr'izc^  or  when  in  the  case 
of  a  warranty  of  neutrality  the  decree  is  founded  on  zruant  of 
neutral  papt-rs^ox  on  mixed  premises  oflarv  andfact^  by  proceed- 
ings according  to  the  law  of  nations,  it  is  conclusive  evidence, 
not  merely  in  suits  between  the  identical  parties  in  the  foreign 
court,  but  as  to  collateral  purposes,  between  other  parties.  The 
principle  of  these  concessions  has  been  recognised  by  this  court 
in  other  cases. 


OF  PENNSYLVANIA.  307 

I  shall  consider  this  cause  more  in  the  light  of  a  special  con-      1808. 
tract,  than  under  general  principles.  The  insurance  was  declar-  c^mouN 
ed  to  be  made  on  sugar,  which  was  brought  in  the  brig  yoJin         v. 
from  Havamia  to  Charleston^  and  not  discharged  there;   war-    Ins.  Co. 
ranted  hv  the  assured   to  be   American   property,    so    to    be      Penn. 
proved^  if  required,  in  this  city  and  not  elsewhere. 

What  is  the  true  meaning  of  this  clause  ?  What  was  the  un- 
derstanding of  the  contracting  parties,  when  they  inserted  it  in 
the  policy  ? 

By  the  decision  in  Gei/er  v.  Aguilar  (7  T.  R,  681.)  it  is  set- 
tled, that  the  legal  import  of  a  warranty  of  American  property 
extends  beyond  an  engagement  that  it  is  American;  and  that  it 
asserts  the  ship  shall  be  navigated  so  that  the  insurer  shall  de- 
rive the  full  benefit  of  her  neutrality.  The  risk  is  thereby  les- 
sened, and  the  premium  is  proportioned  thereto.  The  insured 
are  bound  that  the  ship  shall  possess  all  the  necessary  docu- 
ments required  by  the  particular  laws  of  the  country,  against 
whose  hostility  the  insurance  was  made.  It  follows  from  hence, 
as  a  necessary  consequence,  that  the  master  of  the  ship  shall  not 
only  possess  competent  nautical  skill,  but  shall  so  conduct  him- 
self as  not  to  forfeit  his  neutral  character,  which  would  in- 
crease the  risk  of  the  underwriters. 

We  can  well  remember  the  period  when  such  special  agree- 
ments came  to  be  inserted  in  our  policies,  and  the  cause  of  the 
insertion.  Strong  instances  occurred  of  grossly  partial  and  un- 
just condemnations  in  the  Courts  of  Admiralty  of  the  several 
belligerent  powers;  and  the  courts  here  having  adopted  the 
English  doctrine  that  the  sentences  of  such  foreign  courts  were 
conclusive,  as  to  the  points  which  they  professed  to  decide^  it  was 
judged  necessary  to  introduce  words  similar  to  the  present  into 
the  policies.  The  direct  object  of  such  clauses,  ,§fc;2e"ra/ i«  their 
nature^  was  to  guard  against  the  unworthy  conduct  of  foreign 
tribunals;  and  the  construction  thereof  should  be  coexten- 
sive with  the  evils  intended  to  be  remedied  thereby. 

It  is  a  sc  ttled  rule,  {New  York  Cases  in  Error  1 3.)  that  the  in- 
sured, in  order  to  comply  with  his  warranty,  must  not  only 
maintain  the  property  to  be  neutral,  but  so  conduct  himself  to- 
wards the  l^elligcrent  parlies,  as  not  to  forfeit  his  neutrality;  he 
must  pursue  the  conduct  and  preserve  the  character  of  a  neu- 
tral. These  were  matters  incumbent  on  the  assured  to  prove,  if 
required,  "  in  this  citv,  and  not  elsewhere,"  in  case  of  loss  by 


Pcnn. 


308  CASES  IN  THE  SUPREME  COURl' 

1808.      any  ot  ihe  ]jcrils  expressed  in  the  policy.  They  are  the  neces- 
Calhoun  ^^^y  P'"^'doininant  features  of  the  American  character^  consi- 
T'.         dercd  as  a  neutral  nation.   But  if  the  decree  of  the  Court  of 
Ins.  Co.    Vice  Admiralty  at  Gibraltar  was  conclusive  evidence  of  the 
facts  set  forth  in  it,  and  discharged  the  underwriters,  it  would 
be  idle  in  the  plaintifl's  to  offer  any  proof  upon  the  subject;  and 
the  clause  would  be  thereby  rendered  a  dead  letter,  wholly  nu- 
gatorj'  and  useless.   I  cannot  bring  my  mind  to  accede  to  such 
a  construction,  and  fully  assent  to  the  opinion  expressed  by 
Judge  JVaslwigton  in  1 801  in  Calbraith  and  Grade,  that  under 
such  a  warranty  the  assured  is  at  liberty,  notwithstanding  the 
sentence  of  a  foreign  tribunal,  to  vindicate  the  truth  of  his  war- 
ranty M'ith  all  its  necessary  incidents.  If  it  has  not  this  effect, 
the  clause  appears  wholly  useless,  and  can  serve  no  purpose 
whatever. 

Under  the  express  agreement  then  of  the  contracting  parties, 
I  deem  myself  authorized  to  examine  the  evidence  upon  which 
a  decree  of  condemnation  has  been  pronounced.  It  is  admitted 
by  all  the  writers  on  the  civil  law,  that  no  commerce  or  inter- 
course whatsoever  is  to  be  allowed  to  a  neutral  with  a  blockad- 
ed port;  {Vattcl lib.  3.  c.  7.  s.  117.)  but  Grotius  adds  this  limi- 
tation, if  surrender  or  peace  be  expected.  {Grot,  de  jure  bel,  ei 
pac.  lib.  3.  c.  1.  .s.  5.)  This  limitation  however,  has  been  con- 
demned as  neither  agreeable  to  reason  nor  to  the  conventional 
law  of  nations.  {Bijnker.  quocst.jiir.pub.  lib.  1.  c.  11.  2Broxvn^6- 
Civ.  Laiv  214.)  The  besieging  or  even  blockading  force,  says 
Vattel,  has  a  right  to  hinder  any  one  from  entering,  and  to  treat 
as  an  enemy  whoever  attempts-  to  enter  the  place,  or  carry  any 
thing  to  the  besieged  without  his  leave;  for  he  opposes  the  en- 
terprise, and  may  contribute  to  the  miscarriage  of  it,  and  thus 
cause  the  party  to  fall  into  all  the  evils  of  an  unsuccessful  war. 
The  ship  attempting  to  break  a  blockade  is  liable  to  confisca- 
tion; its  cargo  may  be  so  also,  although  not  contraband,  if  the 
owners  of  that  cargo  were  conusant  of  the  blockade,  before 
they  sent  or  shipped  it;  although  they  might  attempt  to  throw 
the  blame  on  the  carrier  master,  if  such  an  attempt  was  proved 
to  be  founded  in  artifice :  but  if  they  were  really  ignorant  of  the 
fact,  the  master  is  not  their  agent  to  bind  them  by  his  contract, 
or  his  misconduct.  (2  Brozvn's  Civ.  Laxv  318.)  By  the  general 
law  of  nations  therefore,  with  which  the  treaty  between  Great 
Britain  ^x\d  the  United  States  accords,  there  must  be  an  actual!. 


OF  PENNSYLVANIA.  509 

attempt  n-iade  to  enter  the  bloc^zaded  port;  and  there  mual      1808. 
either  be  a  formal  notification  of  the  existence  of  the  blockade,  f.  .,„^„.. 
or  it  must  be  apparent  de  facto.  (1  JRob.  78.  128.  131.  Am.  £d.)         i,. 
And  though  Attiericans  :irii  not  exempted  from  the  common  effect    Ins.  Co. 
of  the  notification  of  a  blockade,  existing  in  Europe^  yet  lying      Perm- 
at  so  great  a  distance,  the  rule  obtaining  in  Europe  Is  reasona- 
bly said  not  to  l)e  rigidly  applicable  to  them,  (l  Rob.  282.) 

Without  citing  civilians,  it  is  perfectly  clear  that  a  treaty 
made  between  two  nations  abrogates  and  annuls  the  general 
law  of  nations  as  between  the  contracting  parties,  and  ought  ta 
be  held  sacred  and  inviolable.  The  plaintiff's  counsel  rely 
much  on  the  18th  article  of  the  treaty  of  commerce  concluded 
between  the  United  States  and  Great  Britain  on  the  19th  A'c- 
vember  1 794.  The  defend:mts  contend  that  this  treaty  is  in  con- 
firmation of  the  law  of  nations,  and  introduces  no  new  principle. 
Be  it  so.  It  will  hov,-ever  be  admitted,  that  it  pointedly  ascer- 
tains that  no  vessel  sailing  to  the  port  of  an  enemv',  unknowing 
of  the  blockade,  shall  be  detained^  nor  her  cargo,  if  not  contra- 
band, be  confiscated,  unless  after  notice  she  shall  ag^aiii 
attempt  to  enter. 

In  the  case  of  the  brig  Columbia  (1  Rob.  132.)  Sir  Wm.  Scott 
declared  himself  clearly  of  opinion  that  sailing  Vv'ith  the  inten- 
tion of  evading  a  blockade,  was  beginning  to  execute  that  in- 
tention, and  was  an  overt  act  constituting  the  offence,  and 
from  that  moment  the  blockade  was  fraudulently  invaded.  He 
thought  the  ceremony  of  turning  away  the  vessel  unnecessar\', 
when  the  merchant  or  his  agents  had  acquired  notice  in  fact, 
even  ditrinir  the  voijage^  of  an  existing  blockade.  The  question 
came  before  the  court  for  correction  of  errors  in  the  state  of 
i^etv  York  (1  Caines  Cases  in  Error  11.)  in  1801,  between  Voss 
and  Grr/oev and  the  United  Insurance  Company^  upon  a  policx"  un- 
derwritten on  the  same  brig  Columbia^  wherein  a  contrary  de- 
cision took  place.  The  Court  of  Errors  there  expressed  sur- 
prise that  the  moral  laM',  which  arraigns  intention.,  should  b( 
adopt'  fl  in  the  law  of  nations  witii  a  greater  latituile  than  in  oui 
municipal  sx'stem,  for  the  benefit  of  belli  if  cr  cuts  ^  and  to  xhcpre- 
judirc  of  neutrals.  "  In  intention,  say  the  court,  there  is  notli 
"  ing  certain  and  permanent;  it  is  controlled  by  every  rcflcc 
"  tion;  is  changed,  dropped,  and  renewed,  by  the  occurrences  ol 
*'  every  liour;  l)y  the  constant  vicissitudes  to  which  the  agent  is 
•*•  '^ubjert.  TJT*-  cntrrprisf  on  a  nearer  vifw  appals,  the  hnty 


310  CASES  IN  THE  SUPREME  COURT 

1808.      *■'  poenitcntic  \s  embraced."  "The  rule,  that  sailing  with  a  destl- 

P  ~"  nation  to  a  hlockadcd  port,  is  a  breach  of  blockade,  is  undefi- 

7>.         "  nable  in  relation  to  distance,  between  the  port  of  departure  and 

Ins.  Co.    "  thatof  destination,  and  will  produce  great  uncertainty  and  vex- 

Penn.  «  ation."  The  same  principle  was  adopted  in  the  Supreme  Court 
oi  Nexv  York  in  Z?o^n;7/ against  Graves  in  1805.  (3  Caincs  236. 
240.)  And  it  cannot  be  denied,  that  the  system  of  reasoning  in 
these  two  last  cases,  is  strong  and  almost  irresistible,  while  wc 
hold  the  treaty  in  view. 

But  without  expressing  any  decided  opinion,  whether  the 
mere  hitention  of  the  neutral  master  shall  constitute  a  breach 
of  blockade  per  w,  we  may  be  allowed  to  inquire  what  evi- 
dence there  is  of  such  intention,  in  the  present  instance.  We 
have  the  same  evidence  bcfove  us,  on  which  sentence  of  con- 
demnation was  pronounced  on  the  vessel  and  cargo,  at  Gibral- 
tar. The  vessel  sailed  from  Charlesto?i  to  Cadiz,  on  the  voyage 
insured,  on  the  8th  yune  1800,  duly  documented,  and  both 
brig  and  cargo,  were  the  property  of  American  citizens.  At 
the  time  of  her  sailing,  it  was  n^t  known  at  Charleston,  that 
Cadiz  was  in  a  state  of  blockade;  and  Captain  .fir/r^fr  has 
sworn,  that  neither  he,  nor  his  crew,  knew  of  the  blockade, 
until  he  was  seized  by  the  British  ship  of  war,  ZTfC^or,  on  the 
16th  Julif  1800,  as  he  was  steering  for  Cadiz,  and  within  six 
hours  sail  of  that  port.  He  further  declares  in  his  affidavit,  that 
if  he  had  received  orders  from  the  British  Admiral  not  to  go 
to  Cadiz,  he  would  not  have  offered  to  proceed  to  that  port.  No 
(  ounter  proof  was  offered  as  to  these  facts:  and  if  the  Captain 
knew  of  the  blockade  antecedent  to  his  seizure,  it  would  have 
been  folly  in  the  extreme  in  him,  to  have  directed  his  course 
to  Cadiz,  surrounded  as  he  was  by  the  squadron  of  Admiral 
Bickerton.  When  the  seizure  was  made,  the  mate  and  four  of 
the  crew  were  removed  on  board  the  Hector,  a  prizemaster 
and  eight  men  were  put  on  board  the  brig,  and  Captain  Barker 
was  detained  as  a  prisoner  on  board  his  own  vessel  until  the  27th 
Julij,  when  he  was  sent  on  board  the  Sxviftsure,  the  Admiral's 
ship.  During  this  interval,  let  Barker'' s  intentions,  be  what  they 
would,  he  could  not,  in  his  dearth  of  hands,  overpowered  as  he 
was  by  the  prizemaster  and  his  party,  have  attempted  to  enter 
Cadiz,  even  if  the  British  squadron  was  not  in  sight.  The 
short  conversation  which  he  had  with  the  Admiral  on  the 
27th  "/?//'/,  dne-^  not  necessarily  lead  to  th^  conclusion,  that  he 


OF  PENNSYLVANIA.  311 

intended  to  violate  the  blockade.  But  this  was  deemed  sufii-  1S08. 
cient  by  the  Admiral,  to  send  him  into  Gibraltar  for  adjudica-  Calhoun 
tion;  and  on  this,  the  sentence  of  condemnation  must  have  been  v. 
founded;  "  because  the  master  persisted  in  his  intention  to  Ii^s.  C<j. 
*'  enter  the  blockaded  port  of  Cadiz^  after  notification."  The  Pcmi. 
effect  which  this  interview  has  on  my  mind,  is  precisely  the 
same  as  that  produced  on  the  minds  of  the  jurors,  who  found 
the  special  verdict  on  the  12th  yulij  1806,  "that  Captain 
"  Barker'' s  intention  was  to  go  to  Cadiz^  unless  he  received 
"  new  orders  from  Admiral  Bickerton  to  the  contrary;  and  if 
*'  the  Admiral  had  given  new  orders  to  Captain  Barker^  not  to 
*■'  proceed  to  Cadiz ^  he  would  not  have  gone  there,  in  breach 
*'  of  such  orders."  We  have  the  authorit}-  of  Sir  William  Scott 
for  asserting,  that  if  there  had  been  any  thing  insidious  in  the 
manner  of  this  interview,  he  should  have  thought  it  his  duty  to 
protect  the  neutral  from  suffering  loss  or  inconvenience,  under 
it.  (l  Rob.  70.)  And  upon  another  occasion  lately,  he  has  de- 
clared that  hasty  expressions,  in  a  moment  of  surprise,  are  not  to 
be  taken  advantage  of  rigidly.  (5  Rob.  258.)  It  is  true  that  the  in- 
dorsements made  on  the  brig's  American  register,  sea  letters, 
and  Mediterranean  pass,  in  these  words,  "  Warned  not  to  enter 
"  Cadiz  or  St.  Lucar^  as  thty  are  blockaded,  but  has  permis- 
"  sion  to  go  to  any  other  port.  Sxviftsure  off  Cadiz ^  26th  Julij 
"  18(XJ,  B.  M.  Hallowell^''  serve  at  first  sight  to  create  suspi- 
cions, as  to  the  truth  and  correctness  of  Captain  Barker^s 
;iccount  of  the  transaction,  with  respect  to  not  being  warned: 
but  when  we  consider  that  the  papers  of  the  brig'-vere  carried 
on  board  the  Admiral's  ship,  on  her  first  seizure,  and  were 
ever  afterwards  out  of  possession  of  the  master,  and  that  the 
British  officer,  who  lodged  them  with  the  Registrar  of  the 
Vice  Admiralty  Court,  swore  that  they  wei'c  in  the  same 
plight  as  when  they  were  taken  from  the  l)rig,  our  suspicions 
on  this  score  vanish  and  we  are  led  to  l^eHeve,  that  the  master 
had  never  been  apprised  of  those  indorsements. 

The  answers  of  Christopher  Bennct^  the  mate,  corroborate 
the  account  of  the  Captain,  and  state  in  particular,  that  the 
blockade  of  Cadiz  was  not  known  at  Charleston^  when  the  brig 
left  that  harbour,  and  was  wholly  unknown  to  him  until  the 
time  of  her  arrest;  and  further,  that  they  received  no  warning 
not  to  enter  Cadiz.  His  oath  is,  however,  inexplicalile  in  one 
part  by  mc.  He  says,  without  naming  the  day,  that  tiie  papciTi 


Jl^  C-AbLS  iN   THL  vSUPKLMi:  COURT 

1808.      '^i^*^  coniniancl  of  ihc  brig  were  oflercd  to  the  Captain,  but  that 

■7;  he  rcTuscd  to  take  the  same,  on  account  of"  the  siczure  and  de- 

Laltioux         .... 

tention  ol  the  brig.   How  could  he  have  obtained  a  knowledge 

Ins.  Co.  of  this  fact,  unless  at  second  hand?  Immediately  on  the  seizure 
Pcnu.  he  was  put  with  four  seamen  on  board  the  Hector^  and  the  Cap- 
tam  continued  a  prisoner  in  his  own  vessel,  under  the  direc- 
tion of  the  prizemaster  and  eight  men,  until  he  was  sent  on 
board  the  Admiral's  ship:  of  course  they  must  have  been 
separated,  imtil  they  met  each  other  again  in  Gibraltar. 

On  the  one  hand  I  cannot  impute  barratry  to  captain  Barker, 
whereby  the  underwriters  would  be  rendered  chargeable.  I  can 
discover  wo  fraud  or  crimiJial  conduct  in  him,  which  are  indis- 
pensably necessary  according  to  the  settled  doctrine  of  this 
court  in  that  ofTence.  2  Dall.  131.  It  will  not  be  supposed 
that  a  tenacious  adherence  to  the  supposed  interests  of  his 
owners,  would  merit  reprehension.  On  the  other  hand,  I  can- 
not believe  that  his  conduct  in  the  bay  of  Cadiz^  in  relation  to 
the  blockade,  so  fi\r  as  has  appeared  in  evidence,  amounted  to 
a  breach  of  the  warranty  in  the  policy. 

'Ihe  plaintiffs  then,  bc7ia  fide  American  citizens,  had  proper- 
ty on  board  to  the  amount  of  the  sum  insured.  The  brig,  duly 
♦locumented,  xinoffendinghj  sailed  to  the  port  insured.  She  was 
arrested  within  six  or  seven  leagues  of  Cadiz  by  a  boat  from 
one  of  the  British  ships  of  vt'ar,  detained  for  eleven  days  against 
the  letter  and  spirit  of  the  treaty,  stripped  of  part  of  her  seamen, 
and  her  master  and  crew  were  incapacitated  by  a  superior 
force  from  proceeding  to  the  destined  port,  or  any  other  place, 
fudging  on  the  evidence  before  us,  I  cannot  discover  any  inte?i- 
fion  in  the  mafitcr  to  violate  the  blockade^  after  notification;  and 
much  less,  in  the  language  of  the  treaty,  after  notice,  any  at- 
iempt  again  to  enter  the  blockaded  port.  I  cannot  therefore  con- 
cur in  the  legality  of  the  condemnation  of  the  brig  and  cargo, 
believing  as  I  now  do,  that  neither  the  owners,  shippers,  master, 
or  crew,  have  in  ought  offended  against  the  treaty  or  the  law  ol" 
nations. 

"Within  these  few  days  we  have  been  furnished  by  news- 
papers with  the  opinion  of  the  Supreme  Court  of  the  United 
.itatcs^  delivered  by  Marshall  Chief  Justice,  in  the  case  oi  Fit- 
','jmmons  plaintiff  in  error,  against  the  Newport  Jnsurdhce  Com- 
pany., on  a  special  verdict  upon  a  policy  on  the  brig  fohn  for 
the  present  voyage,  but  which  is  silent  as  to  the  place  of  proof 


OF  PENNSYLVANIA.  313 

•  }f  the  property  insured  being  American;  which  made  the  case      1808. 

lot  nearly  so  stronp:  as  the*  iiresent.  The  Court  there  declared  77  ' 
1        u    ;  1-     1        1    1-  1  •  Calhoun 

that  the  tacts  disclosed  dul  not  amount  to  an  attempt  again  to  ^, 

enter  the  port  of  Cadiz;  and  thei-elore  did  not  amount  under  the  Ins.  Co. 
treaty  between  Great  Britain  and  the  United  States^  to  a  breach  Pcnn. 
of  the  blockade  of  Cadiz.  The  sentence  of  the  Court  of  Vice 
Admiralty  in  Gibraltar^  consequently,  was  not  considered  as 
falsifying  the  warranty  that  the  brig  was  American  property,  or 
as  disabling  the  assured  from  recovering  against  the  underwri- 
ters in  that  action,  and  the  testimony  in  the  case  shewed  that  the 
blockade  was  not  broken. 

Upon  the  whole,  as  this  has  been  a  loss  by  capture,  within 
one  of  the  perils  expressed  in  the  policy,  I  am  of  opinion  that 
the  motion  for  a  new  trial  be  oyerruled,  and  I  concur  that  judg- 
ment be  entered  for  the  plaintiffs  on  the  verdict. 

Smith  J.  I  was  of  opinion  on  the  trial  that  the  plaintiff 
should  recover,  and  have  seen  no  cause  since  to  think  other- 
wise; at  the  same  time  I  have  been  prevented  by  indisposition 
from  reducing  my  reasons  to  writing.  The  assured  was  entitled 
to  shew  the  truth  of  the  case,  under  the  special  clause;  and  it 
does  not  appear  that  the  conduct  of  the  Captain  amoimted  to  a 
breach  of  blockade.  Some  act  is  necessary  to  constitute  such  a 
breach.  I  give  no  opinion  on  the  question  of  barratry,  which 
may  come  before  us  hereafter. 

Brackknridgk  J.  The  points,  in  the  order  I  shall  take  them, 
are  1st.  Whether  the  conduct  of  the  captain  in  the  bay  oi  Ca- 
diz., in  relation  to  the  blockade,  did  or  did  not  amount  to  a 
breach  of  the  warranty  in  the  policy. 

The  warranty  in  the  policy  is  in  substance,  that  the  property 
insured  was  neutral;  and  the  first  question  that  arises  will  be, 
whether  this  sli.iU  be  construed  as  warranting  agui.ist  a  breach 
of  a  Ijlockade.  There  would  seem  to  be  no  doubt  but  that  it 
shall  be  construed  as  a  warranty  that  the  properly  liclongs  to  a 
neutral  nation;  that  it  is  protected  by  documents  lliat  evince 
this  neutrality;  and  that  it  shall  remain  the  property  of  that  na- 
tion, and  be  protected  by  documents  evincing  that  neutrality, 
<luring  the  voyage  insured.  Hut  wluther  breaking  a  blockade, 
which  incurs  a  forfeiture,  is  within  the  warranty,  is  not  self- 

(•vident.  For  at  common  law,  tli<  distinction  is  well  known  be- 
Vofc.  I.  2  R 


314  CASES  IN  TH1-:  SUPREME  COURT 

1 R08.      t\veen  what  incurs  the  like  forfeiture,  though  not  the  like  act» 
f>,.  As  in  the  case  of  assistincr  a  felon  to  escape,  the  forfeiture  is  the 

L/AI.HOUN  .  ...  . 

^._         same  with  that  of  tht-  principal  felony.  So  capture  is  the  penalt)- 
Ins.  Co.    of  a  neutral  breaking  a  blockade,  which  is  the  same  as  that  ol 

1  enn.  ^^^  enemy  made  a  prize.  But  it  is  an  offence  of  which  a  neutral 
may  be  guilty,  and  subjects  to  confiscation,  not  because  it  is  in 
fact  taking  part  in  the  war,  but  because  the  law  of  nations  or 
particular  treaties  prohibit  it  in  a  neutral.  Grotius  (/.  3.  c.  1. 
*.  5.)  pilts  it  on  this  ground:  ut  is  qn'ijud'ic'i  hnmhientt  reum  via- 
nift'stum  ex'nnit:  atqite  eo  yiomine  licebit  in  eum  statuere  quodde' 
licto  convenit;  quare  intra  eum  modiim  etiam  spoliari  poterit.  It 
is  founded  on  the  idea,  doubtless,  that  it  is  giving  assistance, and 
is  constructively  a  taking  part.  But  it  is  distinguished  from  an 
act  of  direct  hostility,  and  is  not  resented  as  a  cause  of  war  with 
the  nation  to  whom  the  violator  of  the  blockade  belongs;  nor 
does  the  nation  resent  the  capture  as  a  cause  of  war,  the  block- 
ade having  been  broken.  It  is  the  affair  of  the  owner  of  the  pro- 
perty; and  the  forfeiture  which  he  incurs  is  the  penalty  of  the 
transgression;  and  the  matter  terminates  in  this.  Nevertheless 
it  seems  to  be  spoken  of  by  the  writers  of  the  law  of  nations  as 
a  departure  from  neutrality,  and  in  the  language  of  the  writers 
on  the  law  of  insurance,  it  seems  to  be  considered  as  included 
under  a  warranty  of  neutrality.  "  This  warranty,"  says  Mnr- 
■sliall^  (361.)  "  must  not  only  be  true  at  the  time  when  the  poli- 
"  cy  is  efl^ected,  but  the  insured  should  take  care  that  he  do  not, 
"  by  any  act  or  omission  on  his  part,  forfeit  his  neutrality.  Such 
"  forfeiture  is  a  breach  of  the  warranty.  A  ship  may  forfeit  her 

'  "  neutrality  by  any  act  done  or  attempted  against  the  laAv  of 

"  nations."  Here  we  find  a  forfeiture  of  neutrality,  and  a  breach 
of  the  warranty  of  neutrality,  spoken  of  as  effected  by  the  likg 
acts  against  the  rights  of  belligerents. 

The  next  question  that  will  then  arise  under  this  point  will 
be,  has  there  been  a  forfeiture  of  neutrality,  or  in  other  words, 
a  breach  of  the  warranty  in  the  policy;  that  is,  has  there  been  a 
breach  of  the  blockadeby  the  conduct  of  the  Captain  in  the  bay 
of  Cadiz  ? 

Our  treaty  of  1795  with  £;?^/anr/ takes  the  matter  out  of  the 
law  of  nations,  with  regard  to  this,  if  in  any  respect  diff'erent; 
,  and  confines  us  to  the  words  of  the  treaty  with  respect  to  what 
shall  be  a  breach  of  blockade.  '-'•Again  attempt  to  enter'"'  sup- 
poses an  attempt  to  enter  before  she  had  been  turned  away  from 
such  port  or  place,  and  before  she  could  be  liable  to  be  detained 


OF  PENNSYLVANIA.  315 

fn  this  case  it  does  not  appear  that  the  vessel  in  question  had      1808. 
been  turned  awav  before  she  was  detained.  The  seizure  was  /-.,„"    .. 
before  turning  away.  The  Captain  was  taken  onboard  the  captor,         v. 
together  with  all  his  papers  and  letters,  and  detained  on  the     I"s.  Co. 
16th  yult/  from  nine  to  eleven  o'clock,  and  was  then  ordered  on      P*^"" 
board  the  ship;  during  which,  a  prizemaster  and  some  people 
were  put  on  board  his  vessel  to  take  charge  of  her.  He  was  af- 
terwards taken  to  the  admiral,  who  ordered  him  to  be  detained, 
and  that  his  mate  and  four  of  his  crt-w  should  be  taken  out  of 
the  ship,  and  an  officer,  w  ith  eight  men  and  a  boy,  put  on  board 
in  lieu  thereof,  with  direction  to  remain  with  the  fleet.   In  this 
situation,  as  a  prisoner  in  his  own  ship,  he  was  detained  until 
the  27th  jfu/i/^  when  he  was  again  ordered  on  board  the  admi- 
ral's ship.  The  admiral  then  and  there  addressed  him,  saying, 
*'  We  have  some  thoughts  of  setting  you  at  libertv.  In  that  case 
"  what  course  will  you  steer?  or  what  port  will  you  proceed  for? 
*'  In  case  I  receive  no  new  instructions,  I  shall  follow  my  old 
"  ones."  The  admiral  then  said,  "  I  suppose  that  will  be  for 
"  Cadiz."  To  which  the  Captain  replied,   "  certainly,  unless  I 
"  receive  new  orders."  The  captain  by  his  protest  declares  that 
these  words  "  new  instructions,  new  orders,"  meant  instructions 
or  orders  from  the  admiral.  But  it  may  be  that  they  were  intend- 
ed and  ought  to  be  referred  to  owners;  that  it  was  as  much  as  to 
say,  in  case  of  being  set  at  liberty,  I  must  steer  for  or  proceed 
to  Cadiz,  for  such  are  my  instructions,  such  my  orders;  unless 
you  could  change  mv  instructions  or  the  orders  of  my  owners, 
I  must  obey  them.  Taking  this  to  be  the  meaning  of  the  Cap- 
tain's language,  and  supposing  it  not  equivocal,  but  to  contain 
an  express  declaration  of  intention  to  proceed  to  Cadiz  in  case 
of  being  set  at  liberty,  yet  it  is  but  a  declaration  of  intention  to 
enter  that  port,  and  it  could  only  lie  by  being  set  at  liberty,  that 
he  could  be  in  the  ca))acity  to  do  the  act,  that  is,  to  make  the  at- 
tempt to  enter.  'Jhe  declaration  manift-sted  an  intention;  but  it 
remains  to  this  hour  but  evidence  of  an  inltnlion,  not  suflercd 
to  grow  into  an  act.  Intention  to  enter  is  short  of  an  attempt  to 
niter.  The  law  is  lull  of  this  discrlininatiun  between  the  inten- 
tion and  the  act.   Although  a  declaration  of  an  intention  to 
commit  an  offence,  may  be  a  ground  of  binding  to  good  beha- 
viour, yet  it  cannot  be  considered  as  constituting  an  offence.  It 
would  seem  to  me  therefore  l)y  analogy  to  the  principles  of  the 
common  law,  that  the  offence  in  this  case  was  not  complete, 
and  that  there  was  not  an  absolute  breach  of  the  blockade.  This 


316  (  ASES  IN  THE  SUPKEiME  COURT 

1 808.  is  tukinp;  up  the  matter  on  the  principle  of  strict  construction;  but 
Calhovn  ^"'^'^  '^  ^''*''  principle  of  all  laws  which  establish  an  offence,  that 
V.  they  be  construed  strictly.  It  is  a  principle  of  reason  and  hu- 
Tns.  Co.  manitv,  and  not  peculiar  to  our  own  common  law,  but  that  of 
all  nations.  Where  a  forieiture  is  claimed,  it  behoves  the  claim- 
ant to  shew  the  forfeiture  completely  made  out  of  which  he 
would  take  the  advantage.  It  might  have  been  but  matter  of 
form  in  this  case  to  have  restored  the  Captain  his  mate,  and 
four  mariners  and  boy  to  the  ship,  setting  them  at  liberty;  but 
it  was  necessary  to  be  done  in  order  to  constitute  a  free  agen- 
cy, and  to  put  the  captured  in  a  capacity  to  put  about  the 
ship,  and  ag-ahi  attempt  to  enter.  This  might  have  been  form, 
but  it  was  necessary  to  go  through  it.  The  admiral  would  seem 
to  hAve  been  over  hasty  in  seizing  the  vessel  in  the  first  in- 
stance, and  in  the  last,  deficient  in  that  astutia  which  a  spoiler 
under  the  forms  of  law  ought  to  have,  or  which  the  enforcer  ol 
the  penal  code  ought  to  exercise,  in  order  to  avail  himself  of  the 
siummumjus. 

This  construction  of  the  words  "  attempt  to  enter,"  is  sup- 
ported by  that  of  the  Supreme  Court  of  the  United  States^  in 
the  case  oi  Fitzimvions  against  the  iVt'Tiy^or?  Insurance  Company 
according  to  a  report  of  it  which  I  have  seen  published;  and  it 
is  some  evidence  of  the  justness  of  my  construction,  that  I  had 
not  any  knowledge  of  that  report  when  I  prepared  the  foregoing 
on  this  point.  Different  minds  without  communication  thinking 
the  same  thing,  furnishes  a  proof  in  favour  of  the  deduction. 

2.  A  second  point  in  this  case,  to  which  the  verdict  is  sub- 
ject, is,  whether  the  decree  of  the  Court  of  Vice  Admiralty  at 
Gibraltar^  is  or  is  not  conclusive  evidence  of  the  facts  set  forth 
in  it;  and  if  conclusive,  whetherit  discharges  the  underwriters. 

The  judgment  of  a  foreign  municipal  court  is  not  conclusive 
in  England.  An  acquittal  in  a  foreign  court  is  a  bar  in  a  crimi- 
nal prosecution;  (Bul.N.  P.  245.)  but  a  judgment  in  a  civil  ac- 
tion is  examinable.  The  issue  of  nul  /ie/ record  goes  to  the  jur}-, 
because  there  is  no  way  of  bringing  the  record  into  court;  and 
the  seal  of  a  foreign  court  must  be  proved  by  testimony.  The 
judgment  is  examinable,  because  when  the  court  is  calU  d  upon 
to  enforce  the  judgment,  it  claims  a  right  to  examinejthe  ground 
of  it.  Doug.  1.2//.  Black.  410.  Peak  Ev.  70.  The  m  volo  would 
be  a  better  reason;  for  whv  shall  the  lex  loci  govern  the  contract, 
and  not  the  forum  of  the  place  detei-mine  the  controversy  which 
arises  out  of  it  ? 


OF  PENNSYLVANIA  ,317 

But  if  the  judgment  of  a  foreign  municipal  court,  even  be-      1808. 
tween  the  same  parties,  where  there  has  been  an  actual  contesta-  Calhoun 
t\o  litis^  shall  not  be  held  conclusive,  why  shall  the  judgment  of  a         -v. 
foreign  maritime  court  form  an  exception,  and  conclude?  It  is    Ins.  Co. 
true,  the  domestic  court  in  a  case  of  insurance  is  not  called 
upon  to  enforce  the  judgment  of  the  foreign  court:  but  it  is 
called  upon  to  enforce  that  which   depends  upon  it,  and  is 
drawn  from  it.  We  must  therefore  look  to  some  other  source 
for  the  reason  of  the  exception,  and  to  some  other  source  than 
reasons  drawn  from  the  effect  of  judgments  of  domestic  courts 
of  a  peculiar  jurisdiction.  For  reasoning  from  that  source  fails, 
when  we  consider  that  the  community  has  the  framing  her 
own  jurisprudence,  and  the  constituting  her  own  courts,  with 
powers  and  limitations  as  to  all  matters  within  herself;  and  she 
has  it  in  her  power  to  consider  the  judgment  of  one  court  or 
another,  conclusive  or  examinable,  as  she  pleases.  It  is  true  we 
may  argue,  that  as  in  our  domestic  courts  of  peculiar  jurisdic- 
tion we  hold  a  judgment  conclusive,  so  we  ought  to  hold  the 
judgment  of  a  foreign  court  of  peculiar  jurisdiction,  conclusive. 
But  it  will  not  follow:  for  the  same  reasons  of  policy  which  may 
lead  to  protect  our  domestic  judgments,  and  give  them  a  con- 
clusive effect,  may  not  hold  in  the  case  of  a  judgment  of  a  fo- 
reign court. 

Different  results  on  the  same  question  in  the  foreign  prize 
court  and  collaterally  in  the  domestic  court,  is  an  argument 
from  inconvenience.   But  the  same  thing  is  suffered  in  other 
cases.  It  must  not  only  be  on  the  same  question,  but  between 
the  same  parties,  that  a  verdict  or  judgment  in  the  common 
law  court  at  home,  can  be  even  given  in  evidence,  much  less  I)e 
conclusive;  therefore  there  mav  be  different  results  on  the  same 
question,  in  the  same  court,  as  it  affects  strangers,  parties,  or 
privies.  All  the  world  are  parties  to  the  sentences  of  these 
courts  of  peculiar  jurisdiction,  say  judges  and  some  commenta- 
tors.   But  that  in  reality  is  not  the  case;  nor  is  it  the  ground  of 
the  policy.  "  The  ground  is  the  peculiar  jurisdiction  ol   the 
*■'  courts,  independently  of  other  considerations;  and  not  in  rc- 
"  spect  to  any  distinction  of  persons,  stranger,  ])arty,or  j)rivy." 
Ilartr.  Imxo  Tracts  4.57.  But  I  have  nothing  to  do  with  this;  I 
am  only  shewing  that  the  inconsistency  of  contrary  results  on 
the  same  question,  even  in  the  same  court,  is  an  inconvenience 
which  the  law,  for  the  sake  of  justice,  cannot  but  endure. 


318  CASES  IN  THE  SUPREME  COURT 

1808.  ^^  ^^^  consider  the  judgment  of  a  foreign  court  as  conclusive, 

■7;  it  must  be  because  the  community  under  which  that  court  is 

Calhoun  _  - 

X-.  constituted,  demands  it  of  usj  or  because  our  own  convenience 
Ins.  Co.  renders  it  expedient.  If  the  community  demands  it  of  us,  it 
must  be  in  virtue  of  a  treaty,  or  under  some  law  of  nations. 
Treaty  in  the  present  case  is  out  of  the  question:  for  there  is 
no  such  provision  in  any  treaty  we  have  with  foreign  powers; 
nor  have  I  ever  met  with,  or  heard  of  such  a  provision  in  any 
treaty.  Is  it  a  law  of  nations?  If  so,  where  is  it  laid  down? 
With  what  writer  found?  The  Fre7ich  disclaim  it.  "  As  between 
"the  insurer  and  insured  they  enter  into  the  justice  of  the  con- 
"  demnation  of  a  prize  court."  (1  Emerig.  458.)  The  English  na- 
tion alone  gives  it  countenance.  The  ideas  of  one  nation  cannot 
make  a  law  of  nations.  But  it  may  be  said,  the  reason  of  it,  the 
necessary  policy,  makes  it  a  law.  But  what  reason?  what  policy? 
How  are  nations  interested  in  carrying  the  judgment  of  a  prize 
court  farther  than  to  protect  the  thing  sold?  On  the  score  of 
convenience  to  ourselves,  provided  it  breaks  no  relation  with  a 
foreign  nation,  what  is  it  to  the  home  government  how  the 
judgment  of  a  foreign  court  is  considered,  as  to  its  effect  in  a 
matter  of  meum  and  tiiwn  between  citizens  of  the  home  govern- 
ment, unless  to  let  in  an  examination  of  the  prize  court  sentence, 
in  order  that  the  justice  or  injustice  of  it  may  appear,  and  be 
known  to  the  public? 

But  it  is  alleged  that  the  Ejiglhh  common  law  courts  have 
adopted  it  as  a  principle  to  a  farther  extent;  and  thence  it  has 
become  common  law,  that  the  sentence  of  a  foreign  prize 
court  shall  conclude,  not  only  in  rem^  but  in  a  matter  where 
the  effect  of  the  judgment  shall  come  collaterally  and  inciden- 
tally in  question;  that  the  judgment  of  the  foreign  prize  court 
being  placed  on  the  same  footing  with  that  of  the  domestic 
prize  court,  and  the  common  law  being  our  law,  we  are  pinned 
down,  and  cannot  bring  in  question  the  justice  of  the  judgment 
of  the  foreign  prize  court.  If  this  is  so,  I  do  not  see  that  it  can 
be  done,  even  by  consent.  A  wager  would  not  be  sustained  in 
the  English  courts,  which  would  bring  in  question  the  justice  of 
the  judgment  of  a  court  of  a  peculiar  jurisdiction,  nor  would  it 
be  suffered  in  any  action  where  the  judgment  came  poUaterally 
and  incidentally  in  question.  If  so,  and  the  judgment  of  a  fo- 
reign prize  court  is  put  on  the  same  footing  with  that  of  the 
domestic  prize  court,  and  it  is  adopted  as  a  principle  of  the 
common  law,  that  the  judgment  of  a  foreign  court  is  conclu- 


O  F  PENNSYL  V  AN  I A .  319 

sive  to  all  intents  and  purposes  whatsoever,  and  its  judgments  1808. 
are  protected  with  such  sacredness  and  respect,  as  not  to  be  ^  _  ~  . 
touched  as  to  their  effect,  even  collaterally  and  incidentally,  no  -v. 
understanding  of  the  parties,  no  stipulation,  can  enable  the  Ins.  Co. 
court  to  go  into  a  traverse  of  the  grounds  of  a  foreign  judgment,  Penn. 
so  as  to  examine  the  justice  of  it.  No  help  therefore  can  be  de- 
rived from  the  stipulation  in  this  case,  "  warranted  American 
"property,  and  to  be  proved  here."  But  I  deny  that  it  is  a  prin- 
ciple of  the  common  law,  that  the  effect  of  the  judgment  shall 
be  carried  further  than  to  protect  the  thing  sold.  What  evidence 
have  we  of  it?  ^Vllat  case  before  the  date  of  our  charter,  or  even 
before  our  revolution,  where  a  decision  has  taken  place  precise- 
ly on  this  point,  with  a  reference  to  common  law  writers,  or  to 
year  books,  or  to  books  of  entries,  or  reports?  For  I  would  re- 
quire something  of  this  nature  before  the  decision  of  a  Judge, 
even  an  hundred  years  back,  or  two  hundred,  would  pass  with 
me  as  conclusive,  unless  the  reason  of  the  case  was  with  him, 
and  I  could  clearly  see  that  even  if  the  thing  was  not  so,  it 
ought  to  be  so.  In  the  case  of  Hiighea  and  Coriicliufi,  which  is 
the  leading  case  on  this  point,  there  is  no  case  cited,  no  autho- 
rity from  whence  it  might  be  seen  what  was  the  extent  of  the 
doctrine.  It  is  put  on  the  foot  of  reason  and  general  policy. 
Now  if  reason  and  general  policy  carried  it  farther  than  to  pro- 
tect the  thing  sold,  how  can  the  courts  vary  the  policy  when 
carried  farther,  and  let  in  an  examination  bv  consent?  The  rea- 
son  given  in  Ilughca  and  Corncliua  is,  that  if  we  do  not  pay 
respect  to  the  sentence  of  the  court  of  a  foreign  nation,  the  fo- 
reign nation  will  not  respect  the  sentence  of  our  prize  court. 
The  extent  of  the  decision  must  be  tested  bv  the  reason  of  it; 
and  if  the  decision  extends  to  the  case  of  the  insurer  and  insur- 
ed, the  reason  must.  The  argument  will  then  be,  that  the  courts 
of  a  foreign  nation  will  not  respect  a  sentence  of  our  courts, 
unless  we  consider  the  adjudication  as  conclusive  on  the  con- 
tract of  insurance.  In  that  case  we  must  not  put  it  in  the  power 
of  parties.  In-  their  stipulations,  to  involve  us  in  this  dik-mmu. 
No:  the  stii)ulation  would  be  contrary  to  good  policy,  and 
could  not  be  endured;  for  though  it  might  shew  the  under- 
standing of  the  parties,  yet  it  would  be  an  understanding  which 
could  not  be  carried  into  effect.  Who  ever  doubted  the  under- 
standing of  the  parties  in  the  contract  of  insurance,  could  it 
have  been  left  to  the  juries  at  all  times  on  that  point?  That  of 
Itself  would  prove  that  the  examination  of  a  sentence  broke  no 


320  CASES  IN  THE  SUPHEME  COURT 

1808.      lelation  uith  foreign  powers,  and  must  be  a  matter  of  indifferi 

Calhoun^"^*^  to  them,  provided  it  is  not  suffered  to  affect  the  sale  of  the 

V.         property  which  has  been  transferred  under  a  sentence  of  their 

Ins.  Co.    courts.  The  point  in  Hughes  and  Corneliitfi  respected  only  the 

1  cnn.  property  which  had  passed  under  a  sale  of  the  prize  court,  and 
nothing  farther  was  determined  in  that  case;  but  the  generality 
of  the  reason  given,  has  been  assigned  in  subsequent  cases  as  a 
ground  to  carry  it  farther,  and  it  has  been  always  argued  as  at 
this  day,  that  because  a  court  of  peculiar  jurisdiction,  the  sen- 
tence of  a  foreign  prize  court  should  be  put  on  the  same  footing 
with  a  judgment,  decree,  certificate,  or  sentence,  of  our  own 
courts  of  that  description:  not  distinguishing  between  the  neces- 
sity, convenience,  or  policy,  in  the  one  case,  which  may  not  exist 
in  the  other.  I  have  traced  the  history  of  this  conclusiveness  of 
the  sentence  of  a  foreign  prize  court  from  the  first  dicta  which 
seemed  to  look  that  way,  to  the  latest  decisions;  and  have 
seen  from  what  misconception  and  misapplication  the  doctrine 
has  arrived  at  its  present  growth,  and  how  much  the  Eng-lisk 
courts  are  embarrassed  with  it;  which  embarrassment  lies  not 
in  our  way,  because  the  decisions  which  fetter  them,  beginning 
with  Bernardi  and  Motteiix,  have  been  since  our  revolutionary 
period.  But  even  if  they  were  before,  and  fell  upon  us  as  they 
do  upon  tliem,  I  would  think  it  competent  to  look  into  the 
grounds  on  which  the  first  decisions  went,  and  restrain  them  to 
just  limits.  If  from  misconception  or  misapplication  a  doctrine 
gets  a  footing,  there  can  be  nothing  in  the  way  of  setting  it 
right,  but  that  of  property  having  passed  under  it,  or  the  incon- 
venience of  unsettling  adjudications.  It  not  being  real  estate 
that  is  here  to  be  affected,  but  matter  of  personal  property  re- 
coverable or  not  recoverable  in  a  personal  action,  it  can  only  be 
the  last  consideration  that  can  be  in  the  way  of  overruling  an 
erroneous  principle  in  this  case,  even  supposing  that  it  had  got 
a  footing  in  the  jurisprudence  of  this  country. 

The  adjudications  of  foreign  prize  courts  are  supposed  to  be 
founded  on  the  law  of  nations,  and  to  be  conducted  with  equity. 
But  this  presumption,  even  in  the  opinion  of  the  English  courts 
themselves,  with  regard  to  the  French  courts,  has  totally  failed; 
and  they  have  proved  this  by  granting  salvage  on  the  recapture 
of  neutral  property  from  the  French^  considering  capture  and 
condemnation  as  the  same  thing.   (2  Rob.  246.J 

These  United  Slates  say  of  the  English  captures,  de  tefabula: 
this  being  the  case,  what  reasons  of  policy  can  lead  to  counte- 


OF  PENNSYLVANIA.  321 

nancing  the  adjudications  of  either,  orto  respect  the  sentence  fur-      1808. 
ther  than  as  falling  on  the  thing  captured  and  sold:'  On  the  con-  liJ^LHotJ>r 
trary,  good  policy  would  seem  to  require  that  an  examination         v. 
of  the  grounds  of  the  sentence  should  be  let  in  collaterally  or  inci-    I"^-  Co- 
dentally,  as  it  would  afford  an  occasion  to  ascertain  the  robberies 
that  take  place  wider  the  forms  of  justice. 

I  see  therefore  nothing  on  the  ground  of  national  interest  or 
policy,  to  exclude  the  parties  to  a  contract  of  insurance,  from  a 
re-examination  of  the  cause  of  condemnation,  according  to  the 
understanding  of  the  contract,  implied  in  the  undertaking,  or 
expressed  in  the  stipulation.  But  it  is  made  a  point: 

3.  Whether  the  condemnation  was  not  owing  to  the  gross 
misconduct  of  the  Captain:  and  whether  it  was  not  such  as  to 
discharge  the  underwriters. 

This  depends  upon  the  expression  of  the  Captain  in  answer 
to  the  admiral,  who  had  said  "  We  have  thoughts  of  setting 
"  vou  at  liberty:  in  that  case,  what  will  you  dor"  It  is  impossi- 
ble to  say  now,  how  the  thoughts  of  the  admiral  might  have  set- 
tled down,  and  into  what  resolved  themselves;  whether  to  set 
at  liberty,  or  retain  the  capture.  It  is  certain  that  if  the  admiral 
had  really  any  thoughts  of  setting  at  liberty,  this  declaration  of 
the  captured  was  calculated  to  prevent  it.  It  is  very  probable  it 
did  prevent  a  restitution.  But  as  the  capture  was  complete  be- 
fore, a  pri7A'masfer  on  hoard,  and  as  there  was  a  detaining  con- 
trary to  treaty,  and  a  right  of  abandonment  arisen,  the  question 
comes  to  this, — whelherlhedeclarationof  the  Captainmade  sub- 
sequently, and  calculated  to  prevent  restitution,  would  relieve 
the  underwriters  from  the  loss,  before  complete.  It  would  seem 
to  me  that  it  would  be  too  much  to  say,  that  the  declaration  of 
the  Captain,  unequivocal  as  we  are  willing  to  suppose  it,  did 
prevent  restitution;  and  unless  I  could  say  that  it  did,  I  do  not 
see  that  I  can  avoid  deciding  for  the  insured  in  this  case. 

But  let  it  be  taken  that  the  meaning  of  the  Captain  was  a 
plain  declaration^  that  unless  he  got  new  instnations,  ncrv  or- 
ders, from  his  owners,  a  thing  impossible,  he  would  as  soon  as 
at  liijerty  steer  for  Cadiz;  and  that  this  prevented  the  restitution 
of  the  capture,  and  did  in  fact  amount  to  the  same  thing  as  it 
in  the  first  instance  he  had  attemptcfl  to  enter  after  being  turn- 
ed away,  and  by  this  means  had  broken  the  blockade.  The  final 
question  in  this  case  will  arise,  was  it  barratiy  in  the  Captain? 
For  though  the  warranty  on  the  part  of  the  assured,  of  the  pro- 

VoL.  I.  2S 


522  CASLS  IN  THE  SUPREME  COURT 

1 808.      pcrty  being  neutral,  may  bjp  con.sidered  as  warranting  against  all 

/.  that  divtsts  the  neutral  character,  and  so  against  the  breach  of 

,,.         a  blockade;  yet  it  must  consist  with  the  warranty  on  the  partoi 

Ins.  Co.    the  insurer,  viz.  against  the  barratry  of  the  Captain;  and  if  the 

rcnn.  neutral  character  is  divested  by  an  act  of  barratry  in  him,  the 
insurers  are  liable.  It  will  then  be  a  question  whether  the  breach 
of  the  blockade  in  this  case  will  be  barratry,  as  alleged,  by  the 
declaration  of  the  Captain  to  the  admiral  of  his  intention  to 
break  it;  supposing  it  under  all  circumstances  to  be  a  breach  of 
the  blockade.  It  is  a  criminal  act,  a  violation  of  the  treaty.  It 
is  not  stated  to  be  with  the  knowledge  or  consent  of  the  insured. 
But  the  Captain  may  have  thought  it  for  their  benefit,  to  run 
the  risk  of  attempting  to  enter;  and  it  is  not  a  part  of  the  point 
submitted,  that  he  had  any  interest  in  it.  The  case  then  is  this: 
A  crime^  the  cause  of  the  loss,  committed  without  the  consent 
of  the  insured,  without  interest  to  the  Captain,  and  which  he 
may  have  ill-judgingly  thouglit,  or,  to  put  the  case  stronger, 
did  think, y^r  the  benefit  of  the  oxvners. 

"  It  appeared  to  me,"  says  Lord  Mansfeld^  *'  that  the  nature 
"  of  barratry  had  not  been  judicially  considered,  or  defined  in 
"  England  with  accuracy.  It  is  not  easy  to  collect  from  a  gen- 
"  eral  verdict,  or  from  notes  taken  at  Nisi  Prius^  what  was  the 
"  true  ground  of  decision." 

After  considering  the  common  law  cases  o{  Knight  iMi([  Cain- 
bridge^  Stamina  and  Brorvn^  and  Elton  and  Brogden.,  he  ob- 
serves, "  that  these  cases  do  not  afford  any  precise  definition  of 
"what  barratry  is;  therefore  I  wished  the  cause  to  stand  over 
"  to  be  argued  by  one  counsel  on  a  side;  I  have  in  the  mean  time 
"  considered  of  it,  and  consulted  with  men  conversant  in  mer- 
"  cantile  affairs,  and  I  am  now  veri^  clear. ''^  {Coxvp.  153.)  He 
defines  it  to  mean  cheat,  fraud,  cozening,  or  trick.  The  fraus^ 
dolus  aiit  deception  had  been  given  as  the  definition  before; 
and  I  cannot  find  any  thing  more  explicit  here.  So  that  in  fact 
however  clear  to  him,  he  has  left  it  as  dark  to  me  as  he  found 
it.  But  if  he  means  that,  in  application  to  the  case  before  him, 
he  was  clear,  I  agree  that  he  might  be  so. 

Parke  (94'.)  defines  it  "  any  act  of  the  master  or  of  the 
*'  mariners,  which  is  of  a  criminal  nature,  or  which  is  grossly 
"  negligent,  tending  to  their  own  benefit,  to  the  prejudice 
"  of  the  owners  of  the  ship,  without  their  consent  or  privi- 
"  ty."    If  the  words  "  tending  to  their  own  benefit"  were 


OF  PENNSYLVANIA.  323 

struck  out  of  this  definition,  I  should  be  willing  to  adopt  it.      1808. 

For  though  some  indulgence  of  self-interest  may  occasion  this  (-^lhoun 

crassa  ncgii^entia^  or  lead  to  this  conduct,  and  usually  appears 

in  the  case,  yet  without  this  ingredient,  I  take  it  there  may  be    Ins.  Co. 

barratry.  At  least  it  is  not  necessary  for  the  insured  to  shew  it.      Penn. 

The   law  will   infer   it  from   the  criminal  act^   or  the  grosa 

neplip-eiice. 

In  Knight  and  Cambridge^  says  Lord  Mansfeld{Coxvp.  183.) 
*'  the  neglect  of  the  Captain  in  not  doing  his  duty  was  adjudg- 
"  ed  barratry;  for  it  was  his  duty  to  pay  the  port  duties,  before 
''  the  ship  went  out  of  port,  and  he  being  guilty  of  neglect 
"in  not  discharging  them,  it  was  adjudged  to  amount  to 
"  ban-atry." 

"  With  us,"  says  Marshall  (445.)  "  no  fault  of  the  master  or 
*'  mariners  amounts  to  barratry,  unless  it  proceeds  from  an  in- 
"  tention  to  defraud  the  owners  of  the  ship."  In  his  note  at 
this  place  he  cites  an  authority:  non  omn/s  navarci  culpa  est  bar- 
rataria;  sed  solum  tunc  ca  dicitur  qiiando  comittitur  cum  prce- 
existenti  ejus  inachinationc^  ct  dolo  proeordinato  ad casum.  There 
is  nothing  here  of  intention  to  defraud.  It  is  only  of  intention 
to  do  the  act;  that  is,  it  must  be  rvilful.  The  first  case  which  he 
gives  to  illustrate  his  definition  (7  T.  R.  505.)  was  that  of  a 
deviation;  but  fraud  was  negatived  by  the  verdict  of  the  jurj'; 
and  therefore  barratry  could  not  be  inferred.  But  in  Moss  and 
Pr/rom  (6  T.  R.  379.)  Lord  Kemjon,  speaking  of  the  devi- 
ation by  the  Captain,  lays  it  down  that  "  it  was  contrary 
"  to  his  duty,  and  to  the  prejudice  of  his  owners,  because  they 
"  stii)ulated  by  the  charter-party  that  the  ship  should  sail  di- 
"  rectly  to  Liverpool^  and  therefore  they  were  lluble  to  the 
"  freighters  for  any  damage  that  might  happen  in  consequence 
"  of  that  deviation."  In  this  case  the  Captain  had  no  interest 
for  himself;  but  what  is  more,  was  acting,  as  lie  thought,  for 
the  benefit  of  the  owners;  but  by  Lawrfnce  J.  "  though  the 
"  Captain  might  conceive  that  what  he  did  was  for  the  benefit 
"  of  his  owners,  vet  if  he  acted  contrary  to  his  duty  to  them,  it 
"  was  barratry." 

We  are  furnished  by  the  counsel  for  the  plaintiflT  with  a  case 
in  Rclf's  Gazette  of  the  Glh  March  1 807  containing  a  report  of 
a  decision  in  the  Court  of  King's  Bench  of  the  27th  Novem- 
ber ISOG,  Earl  v.  Rowcroft,  which  recognises  this  doctrine; 


o 


24  CASES  IN  THE  SUPREME  COURT 

1 808.      ^"^  though  but  a  newspaper  report,  yet  I  hiclinc  to  think  it 
~  genuine,  and  extract  it  here  as  it  stands  in  the  Gazette.* 

^,  Applying  the  doctrine  of  this  case  to  that  I)efore  us,  it  would 

Ins.  Co.     scL-m  to  be  immaterial  what  the  Captain  thought  in  his  declara- 

^^""-      tion,  or  whether  he  thought  at  all.   It  was  wilful,  and  intended 

bL-ncfit  to  himself  or  owner:  it  vvas  mischievous^  and  taking  it 

to  be  the  cause  of  the  loss,  it  was  barratry.  So  that  quacwique 

via  the  insurers  are  liable. 

New  trial  refused,  and 
Judgment  for  Plaintiff. 

•  Since  reported  In  8  East  126. 


Maifepth      ^^^^  Comnioin\t;aIth  against  Cochran  and  others, 

Officers  of  the  Land  Office. 


IN  June  177 o  yames  Moore  agreed  with  Alexander  Hunter 
and  William  M'Cord  to  take  up  lands,  in  which  they  were  to 


An  appeal 

does  not  lie 

from  the        "^  and  ^^VilUam  IW-Loraio  take  up 

board  of        j^g  equally  interested;  but  the  purchase  money  in  the  first  in- 

tlie  Court  of  stance  was  to  be  wholly  advanced  by  Moore^  and  one  third  was 

Common       afterwards  to  be  repaid  bv  each  of  his  partners.  The  purchase 

Pleas    al- 

tlioug'h  an     was  accordingly  made,  and  six  of  the  warrantees  conveyed  to 
act  of  \s-      Hunter.  The  land  fell  within  the  seventeen  townships.  All  the 

semnlv  uj-  i  ,  i         i  c  4  x.   Aj     -i 

rccts  the  of-  parties  released  to  the  Commonwealth  under  the  act  ot  ^th  April 
f'^<^'"V^  ^1^^*1799,  but  the  commissioners  awarded  the  valuation  to  3Ioore 

board  lo  do  '  i        •        i  •  j       i,- 

certain  alone,  no  part  of  the  purchase  money  havmg  been  repaid  to  nim. 

tlung-s  ;n        Hunter  and  M'-Cord'^s  representatives  entered  a  caveat  in  the 

case  0/  an  '  _ 

Appeal.  land  office  against  issuing  a  ticket  to  the  Comptroller  and  Ke- 

Tlie  only       „lster  General  in  Moore'^a  favour,  and  they  were  heard  by  the 
mode  of  con-  o  .  _        ,       .    ,  p 

testing  their  board  of  property  upon  the  question  of  their  ngnt  to  a  part  oi 

decision  13     ^j^g  valuation;  but  the  caveat  vvas  dismissed.  The  board  how- 
bv  an  action  •  •  r  i, 

between  the  ever  withheld  the  ticket  in  conformity  to  the  third  section  ot  the 

ordllliV"  ^''^  ^^^^  above  mentioned,  which  among  other  things  provides,  that 

%vay.  "  In  case  of  disputes  between  Pennsylvania  claimants  before 

"  the  issuing  of  the  certificates  in  pursuance  of  this  act,  such 

"  disputes  shall  be  decided  by  the  board  of  property  according 

*'  to  the  general  usage;  provided  that  their  decision  shall  not 

*'  prevent  the  party  against  whom  it  is  made,  from  prosecuting 

"  his  claim  in  the  courts  of  law  an  usual;  and  in  case  of  an  ap- 


OF  PEXNSYLVAXIA.  325 

"• /jf-a/ i'rom  the  decision  of  the  board  of  property,  the  certlfi-      1808. 
"  cates  shall  not  issue  until  the  dispute  is  decided.''''  4  St.  Lazvs  (^o^-^j^on- 
400.  Hunter  and  M'-Cord  appealed  from  the  decision  of  the     wealth 
board  of  property  to  the  Common  Pleas  of  Lancaster  county,         ^• 
and  the  appeal  was  afterwards  removed  to  the  Circuit  Court. 

In  December  1805  Jngersoll^  upon  the  affidavit  of  Moore's  ad- 
ministrator, obtained  a  rule  upon  the  defendants  to  shew  cause 
why  a  mandamus  should  not  issue  to  them  to  gvitnt  the  ticket  to 
him  for  the  whole  valuation;  and  his  ground  was,  that  no  appeal 
was  authorized  by  law,  although  the  word  appeal  \v?is  used;  but 
that  an  action  was  the  only  mode  of  setding  the  dispute,  which 
the  losing  party  had  omitted  too  long  to  adopt,  now  to  prevent 
the  board  of  property  from  putting  the  successful  party  in  pos- 
session of  his  rights. 

The  propriety  of  the  appeal  and  also  of  the  mayidamus^  were 
by  consent  blended  in  argument  at  the  present  term  by  Ingersoll 
for  Moore^  and  by  Tilghman  for  Hunter  and  M'-Cord;  and 
the  judges  now  delivered  their  opinions  upon  both  questions. 

Tilghman  C.  J.  This  case  arises  under  the  act  of  4th  Apr'il 
1 799  "  for  offering  compensation  to  the  Pennsylvania  claimants 
"  of  certain  lands  within  the  seventeen  townships  in  the  county 
"  of  Luzerne.''''  4  St.  Laws  4(X).  The  third  section  of  this  law- 
enacts,  that  in  case  of  disputes  between  the  Pennsylvania  claim- 
ants, (before  the  issuing  of  the  certificates  in  pursuance  of  the 
act)  such  disputes  shall  be  decided  by  the  board  of  property 
according  to  the  general  iisage;  provided  that  their  decision 
shall  not  prevent  the  party  against  whom  it  is  made,  from  pro- 
secuting his  claim  in  the  courts  of  law  as  usual,  and  in  case  of 
an  appeal  from  the  decision,  the  certificates  shiUl  not  issue  till 
the  dispute  shall  be  decided. 

There  was  a  dispute  before  the  board  of  property,  between 
Alexander  Huntrr  and  the  representatives  of  William  M'-Cord 
deceased  j)l;iintifTs,  and  the  administrator  of  James  Moore  de- 
fendant. The  board  decided  in  favour  of  the  defendant,  and  dis- 
missed the  caveat  of  the  plaintiffs.  The  party  against  whom  the 
decision  was  made,  entered  an  appeal  to  the  Court  of  Conunon 
Pleas  of  Lancaster  county,  which  was  removed  to  the  Circuit 
Court  of  the  same  county.  On  the  other  hand,  the  administrator 
of  Moore  has  applied  to  this  court  for  a  mnndamus,  to  compel 
the  officers  of  the  land  office  to  issue  a  ticket  to  him,  I)y  which 


326  CASES  IN  THE  SUPREME  COURT 

1808.      J^c  ™'^y  be  enabled  to  receive  from  the  Commonwealth   the 

"7i  whole  money  at  which  the  land  was  valued.  We  are  now  to  dc- 

Common-     .  -  •       •  i         i 

wealth      ^"^^  o"  ^^^  appeal  and  the  mandamus.   I  think  it  very  clear  that 

V.  the  appeal  must  be  dismissed;  there  is  no  law  or  precedent  au- 
CocHRAV.  thorizing  an  appeal  from  the  board  of  property  to  the  Court  of 
Common  Pleas  of  any  county.  The  only  mode  of  appeal  is  by 
bringing  an  action  at  law.  But  in  the  present  case  there  is  great 
difficulty  in  bringing  an  action.  The  party  against  whom  the 
board  of  property  decided,  cannot  bring  an  ejectment,  because 
he  has  released  his  title  to  the  Commonwealth.  Neither  can  he 
bring  an  action  for  money  received  by  his  adversary  for  hi» 
use,  because  no  money  has  yet  been  received.  Under  these  cir- 
cumstances I  do  not  think  it  right  to  issue  a  mandamus.  The 
appeal  being  dismissed,  the  board  of  property  are  at  liberty  to 
act  according  to  their  discretion.  And  I  should  think  it  no 
abuse  of  that  discretion,  if  they  were  to  say,  that  inasmuch  as  it 
was  the  clear  intent  of  the  legislature  that  no  money  should  be 
pa'id^  till  the  party  against  whom  they  decided  had  an  opportu- 
nity of  a  trial  in  nature  of  an  appeal,  and  as  such  trial  cannot  be 
had  unless  the  parties  by  mutual  consent  agree  upon  some  mode 
of  bringing  the  matter  before  a  court  of  law,  they  will  withhold 
the  ticket  until  the  administrator  of  James  Moore  consents  to 
put  the  matter  in  train  for  a  speedy  decision.  If  after  this  in- 
timation, any  affxtation  of  delay  should  be  manifested  by  the 
party  against  whom  the  board  have  decided,  a  ticket  might  be 
issued  to  Moore  immediately. 

Yeates  J.  The  proviso  in  the  third  section  of  the  act  of  4th 
Apr\l  1  799  is  involved  in  great  obscurity,  from  its  not  prescrib- 
ing the  mode  of  appeal  from  the  decision  of  the  board  of  pro- 
perty. I  am  strongly  inclined  to  believe  that  it  must  be  by 
action  at  law.  But  in  what  form?  The  Pennsylvania  (i\'A\vci^.ViX 
must  release  to  the  state  before  he  can  be  entitled  to  compensa- 
tion; and  when  he  is  divested  of  his  title,  he  cannot  support 
ejectment.  The  words  are,  "  the  certificates  shall  not  issue  un- 
''  til  the  dispute  shall  be  decided."  Until  the  money  is  paid,  I 
do  not  see  what  kind  of  personal  action  can  be  maintained. 

The  board  of  property  are  to  decide  in  case  of  disputes  be- 
tween Pemisiflvania  claimants,  according  to  the  general  usage. 
They  seem  to  have  done  so  in  the  present  case.  The  appeal 
must  be  dismissed  as  irregularly  made  to  the  Common  Pleas 


OF  PENNSYLVANIA.  327 

of  Lancaster  county.  But  \i  Alexa7ider  Hunter  and  John  Cook      1808. 
are  willing  to  institute  a  suit  to  try  their  right,  I  do  not  see  how  common- 
the  certificate  can  be  issued  until  that  matter  is  settled.  It  will     wealth 
be  found  tht  interest  of  all  parties  to  agree  on  some  amicable         "J'- 
mode  of  deciding  the  dispute.    The  motion  for  a  jnandamus 
as  to  the  ticktt  must  be  denied,  as  it  goes  to  the  Comptroller 
find  Register  General. 

Smitu  J.  was  not  present  at  the  argument. 

Brackenridge  J.  concurred. 

Appeal  dismissed,  and 
Rule  discharged. 


"x^lc  Champnevs  against  L v l e  and  others,  assiernees  of   Saturday, 

\^'t**'      T^  ^^  1    r  T>.  1        1  X  Aprils. 

V  \v'  ^    Richard  Maris  and  JohnDavis,  bankrupts. 

THIS  was  an  action  for  money  had  and  received  to  the  The  prcfer- 
plaintiff's  use.  On  the  11th  and  15th  ^/;ri/  1801,  ^^«'"/'-[,".",fact"of 
net/*,  as  the  surety  of  Maris^  executed  three  bonds  to  the  UnitedUt  March 

States  for  duties  upon  coods  imported,  which  he  afterwards '''■^7.^°. 

'  "  '  '  sureties  m 

paid.  Maris  became   a  bankrupt  within  the  act  of  Congress  rnstom- 
passed  the  4di  of  April  1800,   and  this   action  was  l^'"OUght  Jj'jJJf* '^""j^ 
against  his  assignees  to  recover  the  full  amount  of  the  sum  paid  b:mie  to  the 
to  the  United  States,  with  interest  up  to  the  time  of  judgment,  t-j"'^^^^  -^^^^^ 
in  preference  to  the  other  creditors.  The  jury  found  a  verdicttaken  away 
for  the  plaintiff  for  his  whole  demand,  subject  to  the  opinion  of  ^'^^  ^^  actfuip 
the  court  upon  two  points:  surriy  is  en- 

TTri       11  r  •  •        •      1         1     1'        1      tided  to  nri- 

1.  Whether  the  prelerence  given  to  sureties  m  bonds  tor  the  ,„.ny  ^f  '    . 

payment  of  duties  by  the  act  of  1st  March   1799,  was  taken  "^^"t  out  of 

I       1     I      I  c     ^     4     -I  ^'"^  hank- 

away  by  llie  bankrupt  act  ot  4th  Af)ru  1800.  mnt's  estate 

2.  If  not,  then  whether  the  plaintiff  was  entitled  to  recover  in-  *'""  '^'"^'' 

,  L       I  r    L  r  1       1  principal  and 

ttrest  subsequent  to  the  date  01  the  commission  01  bankruptcy.  nitcrMt. 

By  the  65th  section  of  the  "  Act  to  regulate  the  collection  of 
"  duties  on  imports  and  tonnage,"  it  is  enacted  that  in  all  cases 
of  insolvencv,  or  where  any  estate  in  the  hands  of  the  execu- 
tors, administrators  or  assignees,  shall  be  insufficient  to  pay  all 
the  debts  due  from  the  deceased,  the  dci)t  due  to  the  United 
Stofrv  on  any  bond  for  the  pavment  of  duties  shall  be  first  satis- 


Lyle. 


328  CASES  IN  THE  SUPREME  COURT 

1808.  fictl;  a"tl  if  the  princip;xl  be  insolvent,  and  the  surety  shall  pay, 
Champ^  he  shall  have  the  like  advantage,  priority,  or  preference,  for  the 
NEYs  recovery  of  the  money  out  of  the  estate  and  effects  of  the  prin- 
'"•  pal,  as  are  reserved  to  the  United  States.  It  also  provides  that 
on  all  bonds  on  which  suits  shall  be  connmenced,  an  interest 
shall  be  allowed,  at  the  rate  of  six  per  cent,  per  annum,  from 
the  time  when  they  became  due,  until  the  payment  thereof. 
By  the  31st  section  of  the  "  Act  to  establish  a  uniform  sys- 
*'  tern  of  bankruptcy,"  it  is  enacted  "  that  in  the  distribution  of 
"  the  bankrupt's  effects,  there  shall  be  paid  to  every  of  the  credi- 
"  tors  a  portion  rate,  according  to  the  amount  of  their  respective 
"  debts,  so  that  every  creditor  having  security  for  his  debt  by 
"judgment,  statute,  recognisance,  or  specialty',  or  having  an  at- 
"  tachment  under  any  of  the  lav/s  of  the  individual  states  or  of 
"  the  Ujiited  States  on  the  estate  of  such  bankrupt,  provided 
"  there  be  no  execution  executed  upon  any  of  the  real  or  per- 
"  sonal  estate  of  such  bankrupt  before  the  time  he  or  she  be- 
"  came  bankrupt,  shall  not  be  relieved  upon  any  such  judgment, 
*'  statute,  recognisance,  specialty,  or  attachment,  for  more  than 
"  a  rateable  part  of  his  debt,  with  the  other  creditors  of  the 
"  bankrupt;"  and  the  62d  section  enacts  "  that  nothing  in 
''  this  law  contained,  shall  in  any  manner  ajfect  the  right  of 
'•'•  preference  to  prior  sati faction  of  debts  due  to  the  Uni- 
"  ted  States^  as  secured  or  provided  by  any  laxv  heretofom 
"  passed." 

The  points  were  argued  by  Milnor  and  Ligersoll  for  the 
plaintiff,  and  by  Raxvle  for  the  defendants. 

For  the  plaintiff.  The  Arst  question  is  whether  the  bank- 
rupt law  constructively  repeals  the  provision  in  the  65th  section 
of  the  act  of  1799  which  gives  the  plaintiff  a  preference;  for  it 
is  clearly  no  repeal  in  terms.  In  the  case  of  constructive  re- 
peals, it  is  requisite  that  a  plain  intention  to  this  effect  should  be 
shewn  by  the  legislature;  for  if  the  statutes  can  stand  together, 
it  shall  be  presumed  to  be  so  intended  until  the  contrary  mani- 
festly appears.  That  a  repeal  could  not  have  been  intended  by 
Congress,  is  obvious  from  many  circumstances.  In  the  first 
place,  the  case  of  the  plaintiff,  a  case  of  clear  preference  prior  to 
the  bankrupt  act,  is  not  enumerated  in  the  31st- section,  with 


OF  PENNSYLVANIA.  329 

those  securities  and  prc;ferences  which  Congress  meant  to  de-      1808. 
feat.  In  the  next  place,  the  62d  section  expressly  saves  the  pri-    p 
ority  belonging  to  the  United  States,  and  the  plaintiff  stands  in      keys 
their  shoes.   But  further,   the  preference   given  by  the  act  of         v. 
1799  is  not  confined   to  a  surety  who  pays  for  his  bankrupt      ^^^e. 
principal,  but  it  extends  to  the  case  of  voluntary  assignments, 
and  affects  the  estate  of  a  person  who  dies  without  assets  to  pay 
all  his  debts.  Now  the  repeal  can  go  no  further  than  to  defeat 
the  preference  in  case  of  bankruptcy;  and  then  the  other  priori- 
ties remain,  which  is  absurd.  But  if  the  repeal  has  taken  place, 
what  is  there  to  preserve  the  preference  to  sureties  who  have 
executed  and  paid  the  bonds  /(r/ire  the  bankrupt  law  ?   There 
is  no  difference  between  these  and  subsequent  bonds,  all  are 
affected  or  none;  and  the   argument  for  a  repeal  therefore 
supposes  a  monstrous  breach  of  faith.    The   obvious   policy 
of  the  law  of  ir09  is  to  induce  persons  to  become  sureties, 
and   sureties   to   pav    the    money,  by  promising  them  a  se- 
curity; and  it  cannot  be  credited  that  the  legislature  would 
be   satisfied   to  withdraw   such   a  promise,  in  an  ambiguous 
manner. 

The  second  question  depends  altogether  on  the  first.  The 
rights  of  the  United  States  are  preserved,  and  oi  course  with 
them  a  right  to  the  interest,  which  the  law  directs  to  run  on  until 
the  payment  of  the  bond.  1[  the  surety  is  entitled  to  the 
"  like  advantage,  priority,  and  preference,"  his  title  must  go  the 
whole  length.  The  reason  for  limiting  the  interest  in  common 
cases  to  the  date  of  the  commission,  does  not  apply.  The  fund 
being  dead,  it  is  all  the  same  to  creditors  who  must  share  pro 
r^/r/,  whether  interest  runs  on  or  not.  Even  in  the  case  of  a 
mortgage,  the  assignees  if  thev  wish  to  redeem,  must  pay  full 
interest.   1  Co.  limikrvpt  Law,  182. 

For  the  defendant.  Kvery  affu-mative  statute  is  a  repeal  by 
implication  of  a  precedent  affirmative  statute,  so  far  as  it  is 
contrary  thereto.  1 1  Rep.  61.  I'oster''s  case.  The  question  then 
is,  whether  the  jirovisions  of  the  b;iiikrupt  act  are  opposed  to  the 
preference  given  fiy  the  act  of  1  799.  That  tlie  policy  of  the  law 
is  opposed  to  it,  there  can  be  no  doubt.  It  proceeds  with  a  view 
to  divide  the  property  of  an  insolvi  nt  ratc.-iblv  nmong  all  lii» 

Vol..   I.  I'V 


330  CASLS  IN  THE  SUPREME  COURT 

1808.  tic<liti>ib,  ami  is  in  open  hoslillty  to  such  preferences  as  an  in- 
~7~7~  solvent  makes  Ix-lorc  an  act  of  bankruiUcy  in  contemplation  of 
>EYs  that  event.  Its  provisions  are  also  opposed  to  it.  The  single 
^''  case  in  which  the  creditor  of  a  bankrupt  is  entitled  to  a  pre- 
^^'^'  ferencc  under  this  law,  is  that  in  which  he  has  a  specific 
lien,  a  mortgage,  a  pawn  or  pledge,  or  an  execution  exe- 
cuted; and  the  reason  of  it  is,  that  the  assig-nees  cannot  ask 
equity  from  the  holders  of  the  property  without  doing  com- 
plete equity  to  them.  But  even  in  this  case,  if  the  lien  creditor 
asks  to  come  in  under  the  assignment  for  a  balance  beyond  the 
value  of  the  pledge,  he  must  come  in  as  other  creditors,  so  that 
his  security  arises  solely  from  possession  of  the  property,  and 
is  limited  to  that  extent.  1  Co.  Bank.  Law  161.  The  preference 
under  the  law  of  1799  must  therefore  cease  by  reason  of  the 
general  provisions,  unless  it  is  expressly  saved;  whereas  the 
argument  for  the  plaintiff  supposes  that  it  will  stand  from  its 
being  consistent  with  them,  unless  it  is  expi-essly  taken  away. 
The  constitutionality  of  the  preference  to  the  surety  has  always 
been  questioned,  and  suffering  it  to  fall  in  consequence  of  its 
collision  with  a  subsequent  act,  was  the  best  way  of  terminating 
it.  But  it  is  said  that  the  preference  is  expressly  saved  to  the 
United  Stafa-.  This  is  still  worse  for  the  case  of  the  plaintiff; 
for  the  express  saving  of  the  rights  of  one  person,  shews  an  in- 
tention not  to  save  the  rights  of  others.  As  to  the  effect  of  the 
bankrupt  act  upon  bonds  given  prior  to  its  date,  the  question 
does  not  arise;  these  bonds  were  given  and  paid  subsequent  to 
that  law. 

The  question  of  interest  does  in  some  measure  depend  upon 
the  other;  but  this  is  a  question  as  to  the  extent  of  interest, 
and  not  whether  any  is  chargeable.  Now  there  is  not  a  case  of 
any  kind  in  Avhich  a  person  claiming  from  the  bankrupt  fund, 
even  if  he  has  a  specific  pledge  in  his  hands,  is  entitled  to  in- 
terest after  the  commission.  The  fund  earns  nothing,  and 
should  thcrelbre  pay  nothing.  It  is  not  like  the  case  of  as- 
signees asking  to  redeem;  it  is  the  case  of  a  person  claiming 
from  the  fund,  and  not  from  the  individual.  The  act  of  1799 
docs  not  extend  the  preference  to  the  interest;  the  provision  is 
introduced  to  prevent  a  doubt  that  the  bond  after  failure  of 
payment  carries  interest. 


Lyle. 


OF  PENNSYLVANIA.  331 

TiLGHMAN  C.  J.  delivered  the  opinion  of  the  court.  1808. 

The  plaintifF  was  bound  as  security  for  Richord  3Iaris\  in    Chamt- 
sundry  bonds  to  the  United  States^  for  duties  en  goods  ini-       ^'i^^'^ 
ported,  dated  11th  April  1801.  The  plaintilFpaid  those  bonds, 
and  Maris  became  a  bankrupt.  Two  questions  are  now  sub- 
mitted to  the  court. 

1.  Whether  that  preference  which  was  given  to  sureties  in 
bonds  for  duties,  by  the  65th  section  of  the  act  of  Congress, 
"  to  regulate  the  collection  of  duties  on  imports  and  tonnage," 
(^HJarch  1st  1799)  was  taken  away  by  the  act  "  to  establish  an 
"  uniform  system  of  bankruptcy  tlu-oughout  the  United  Stat  cs.^^ 
{April  4th  1 800.) 

2.  If  such  preference  is  not  taken  away,  then,  whether  the 
plaintifF  is  entitled  to  recover  interest  subsequent  to  the  date  of 
the  commission  of  bankruptcy. 

The  65th  section  of  the  act  to  regulate  the  collection  of 
duties  &c.  provides  that  in  case  of  insolvency  of  the  obligors, 
or  in  case  of  their  death,  and  not  leaving  sufHcient  assets  to  pay 
all  their  debts,  the  debt  due  to  the  United  States  on  bonds  for 
duties,  shall  bcjirst  satisfied;  and  that  if  any  surety  in  such 
bonds  shall  pay  to  the  United  States  the  money  due  thereon, 
"  he  shall  have  and  enjoy  the  like  advantage,  priorit}',  and  pre- 
"  fcrence,  for  the  recovery  and  receipt  of  the  said  money,  out 
"  of  the  estate  and  effects  of  such  insolvent,  or  deceased  prin- 
*'  cipal,  as  are  reserved  and  secured  to  the  United  States.'''' 

The  bankrupt  law  provides  in  general  for  the  equal  distri- 
bution of  the  bankrupt's  estate  among  his  creditors,  without  any 
preference,  except  as  to  tliose  creditors  who  had  liens  existing  at 
the  date  of  the  act.  But  it  is  enacted  by  the  G'id  section,  that 
nothing  contained  in  that  law  "  should  in  any  manner  affect  the 
*'  right  of  preference  to  prior  satisfaction  of  debts  due  to  the 
"  United StateSy  as  secured  or  provided  by  any  law  theretofore 
"  passed." 

It  would  have  been  an  act  of  such  extreme  injustice  to  take 
away  from  sureties  in  custom-house  bonds,  that  preference 
which  had  been  assured  to  them,  and  on  the  faith  of  which 
they  became  l)ound  to  the  United  States,  that  nothing  but  the 
clearest  expressions  could  induce  me  to  suppose  that  congress 


Lyi.e. 


332  CASES  IN  THE  SUPREME  COURT 

1808.      li^<l  such  intention.  And  whatever  is  the  construction  of  the 
Champ-~  hankrupt  law  wilh  respect  to  bonds  passed  before  its  date,  it 

NKYs  must  be  the  same  as  to  bonds  of  subsequent  date;  for  not  the 
■''•  least  distinction  between  them  is  to  be  found  in  the  law.  Now 
it  appears  to  mc,  that  the  provision  in  the  62d  section  of  the 
bankrupt  law,  that  nothing  therein  contained  should  affect  the 
"  right  of  preference  to  prior  satisfaction  of  debts  due  to  the 
*'  United  States^  as  secured  by  any  prior  law,"  may  fairly  be 
construed  so  as  to  preserve  the  rvliole  riglit  of  preference, 
touching  these  debts,  whether  that  preference  was  given  to  the 
United  States^  or  to  sureties  in  the  bonds.  I  am  the  more  in- 
clined to  adopt  such  construction,  because  otherwise,  not  only 
would  the  United  States  be  chargeable  with  the  flagrant  injus- 
tice I  have  mentioned,  but  with  the  ab.snrdity  of  taking  away 
the  preference  of  sureties  in  case  the  principal  became  a  bank- 
rupt^ but  leaving  it  untouched  when  he  died,  not  a  bankrupt, 
but  wilh  an  estate  insufficient  for  the  payment  of  all  his  debts. 
Besides,  the  general  creditors  of  the  bankrupt  would  derive  but 
little  advantage  from  the  construction  contended  for;  because 
the  preference  of  the  United  States,  is  undoubtedly  preserved, 
and  they  might  and  ought  to  call  on  the  assignee  for  payment 
of  the  xvhole  debt.  Had  congress  thought,  as  has  been  suggested 
by  the  counsel  for  the  defendants,  that  the  preference  of  sureties 
was  in  its  nature  unjust,  and  perhaps  not  strictly  warranted  by 
the  constitution,  they  surelj-  ought  to  have  openlj'  abolished  it 
altogether,  (taking  care  that  no  injury  should  arise  to  those 
persons  who  had  acted  under  the  faith  of  an  existing  law)  and 
not  have  made  7\  partial  repeal,  in  the  obscure  manner  in  which 
it  is  said  to  have  been  effected  by  the  bankrupt  law. 

I  am  therefore  of  opinion,  that  the  bankrupt  law  did  not  re- 
peal those  provisions  in  former  laws,  which  in  cases  of  bank- 
ruptcy gave  a  preference  to  sureties  in  custom-house  bonds. 

As  to  the  second  point,  the  6Gth  section  of  the  act  to  regu- 
late the  collection  of  duties  &c.  enacts,  that  "  on  all  bonds  on 
"  which  suits  shall  be  commenced,  an  interest  shall  be  allowed 
"  at  the  rate  of  six  per  cent,  per  annum,  from  the  time  when  the 
"  said  bonds  became  due,  until  the  payment  thereof;"  no  dis- 
tinction is  made  between  suits  brought  by  the  United  States, 
and  by  the  sureties.  Being  of  opinion  then,  that  no  part  of  the 


OF  PENNSYLVANIA. 


advantage  given  to  sureties  by  this  law  is  taken  away  by  the      1808. 

bankrupt  law,  I  must  also  be  of  opinion  that  the  interest,  which  ~7T"  "T 

is  part  of  that  advantage,  is  recoverable  in  a  suit  brought  by  the       neys 

surety  against  the  assignees  of  the  bankrupt.  "y- 

Lyle. 
Judgment  for  plamtiff. 


whBoggs  administrator  of  Calbraith  agatjist  Black.  SatuiJay, 

f6«         •  April  2d. 


\^  In  Error. 

125 
294 


W''RIT  of  error  to  the  Common  Pleas  of  Dauphin  county.  Notice  te 
Calbraith  on  the  29th  March  1782,  leased  to  ^/«f/ a  S  of  I  «r. 
tract  of  land,  to  hold  from  jear  to  year  from  the  date  during t-i'"  year,  is 
the  pleasure  of  the  landlord,  under  an  agreement  that  the  te-  bv\he  bnd- 
nant  should  improve  tiie  land  by  cutting  oif  the  timber  so  as  to'"rd'sper- 
clear  it,  put  it  under  fence,  and  pay  the  taxes.   On  the  26thlen.!Jn"^o  J.^. 
April  1802,  he  instituted  a  proceeding  under  the  landlord  and'"'"'?  i"  pos- 
tenant  law,  to  turn  Black  out  of  possession;  and  the  jury  by  t,nthe  year 
their  inquest  found  that  the  term  was  fully  ended  on  the  29th ''*f'^'".^l'e  ex- 
March  1801,   that  the  landlord  in  the  month  o(  Februarif  ISOOuleVmice; 
gave  Blaci  notice  to  quit  on  the  said  29th  of  March,  and  that'^'**"'^'^- 
notice  to  quit  was  given  at  "  divers  other  days  and  times,  to  wit,  u..'iia'nt' hdd^ 

"  on  the  25th  oijanuurij  last."  (1802).   They  found  all  other '^X  ^'^  "»- 

»     •    1   r     ^  I  '      •  1     1  '         1       1       1,       ,  />roi7np- lease, 

material  tacts,  and  possession  was  awarded  to  the  landlord,  ^l,at  1°,  to 

The  record  of  the  inquisition  was  removed  by  certiorari  to  the^''^''""  '""^ 

/■'  r>i  1  1-1  •    1       •        •  k;iici;  tlic 

1.0m mon  rleas,  where  the  judgment  ot  the  justices  was  revers-  land  and  pav- 
ed, and  restitution  ordered  j  and  the  cause  was  now  brought  up!.''*^  ^"2^*^^ '" 
...  01  iipn  „f  rent, 

by  writ  of  error.  o)„.  \vi,ether 

tlic  notice  to 

In^er.soll  {or  the  defendant  argued,  that  by  the  finding  of  the  Jf',"j^'^.'5^^['''"'" 
jury,  the  three  months'  notice  required  hy  tlie  act  of  1772,  had  iandl'uidand 
not  been  given.  The  notice  in  F<  bruary  1 80(J  to  quit  on  the  29th  Ij^lIIujc"*!^.. 
March  1801,  was  waived;  for  as  this  was  an  improving  lease, <ii  iluc* 
3uff.:ring  the  tenant  to  stay  and  improve  the  land  was  equiva-  [ill.".'\'!fecn"j 
lent  to  the  acceptance  of  rent  due  after  the  end  of  the  term,  <>r the  term 
which  was  clearly  a  waiver  of  notice.  Charter  v.  CorJwent.  (a) 
niari  was  tli.n  tenant  for  a  jear  ending  29th  Ahirch  1802;  and 
if  sf),  the  notice  on  the  25ih  Jaiiuanj  was  too  short,  as  it  was 

(rt)  0  DUf  K.  219. 


334  CASES  IN  THE  SUPREME  COURT 

1808.  "Ot  given  three  months  before  the  end  of  the  term.  This  is  the 

7^      ^  law  in  England  as  it  respects  the  half  year's  notice,  and  has 

-;,.  been  ruled  to  be  the  true  construction  of  our  act  by  President 

Black.  Wilson^  :it  Bucks,   (a) 

Hopkins  for  the  plaintiff  said,  that  the  waiver  was  a  question 
for  the  jury,  which  was  negatived  by  their  finding,  and  which 
did  not  appear  from  any  thing  on  the  record ;  on  the  contrary, 
the  other  notices  kept  it  alive.  But  if  the  case  turned  on  the 
notice  of  the  25th  Januarij  1802,  it  would  nevertheless  be  Avith 
the  plaintiff,  since  it  had  been  repeatedly  held  that  the  notice 
was  sufficient  if  given  any  time  before  the  end  of  the  year,  pro- 
vided it  was  three  months  before  the  application  to  the  justices, 
which  in  this  case  was  on  the  25th  April  1802. 

TiLGHMAN  C.  J.  delivered  the  court's  opinion. 

This  is  a  proceeding  by  a  landlord  against  his  tenant  under 
our  act  of  Assembly.  The  jury  found  in  favour  of  the  landlord. 
The  proceedings  were  removed  to  the  Common  Pleas  of  Dau- 
phin county  where  a  decision  was  made  in  favour  of  the  tenantr/^T'^ 
on  which  judgment  a  writ  of  error  was  brought  in  this  court. 

(rt)  Brown  ")  THIS  was  a  certiorari  from  the  Common  Pleas  of  Biicli 
V.  >  county,  to    remove  the  proceedings  before  two  justices  of 

Vanhorn.  J  tjie  peace,  under  the  landlord  and  tenant  law,  in  wliicli 
iud"ment  was  entered  in  favour  of  Broivii,  the  landlord.  One  of  the  excej)- 
tions  against  the  proceedings  was,  that  tlic  notice  to  leave  the  demised  pre- 
mises was  not  given  three  months  before  the  expiration  of  the  time. 

Wilson  President.  The  notice  to  quit  appears  from  the  record  to  have 
been  given  less  than  tliree  months  before  the  expiration  of  the  term.  The 
defendant  is  stated  to  iiold  under  a  parol  lease  from  year  to  year,  during 
w  ill.  In  such  a  case  tlie  lessor  cannot  determine  his  will  at  any  time  he 
pleases;  the  moment  another  jear  commences,  the  tenant  has  a  right  to  hold 
until  the  expiration  of  it,  and  cannot  legally  be  retjuired  by  the  landlord  to 
leave  the  premises  at  any  otlicr  period.  By  tlie  common  law,  ever  since  the 
reign  of  Henry  8,  wliere  there  was  a  lease  from  year  to  year  during  the  plea- 
sure of  both  parties,  it  was  required  tiiat  half  a  year's  notice  to  quit 
should  be  given  by  the  landlord  to  the  tenant  before  an  ejectment  could  be 
brought.  2  J3i.  Com.  147.  And  there  have  been  repeated  determinations  that 
the  notice  must  be  given  half  a  }  car  before  the  end  of  tl)e  year,  or  the  eject- 
ment cannot  be  suppcnted.  The  Court  of  King's  Bench  in  the  case  of  the 
Lessee  of  Flower  v.  Darby  and  Bristoiv,  1  D.  iSf  E-  159.  decided  that  the 
notice  to  quit  must  end  at  the  exjuration  of  the  year,  and  several  prior  deci- 
sions of  the  same  kind  were  cited.  The  act  of  Assembly  on  which  the  pro- 


OF  PENNSYLVANIA.  335 

The  objection  to  the  finding  of  the  jury  is  that  it  does  not      1808. 
appear  that  sufficient  notice  to  quit  the  premises  was  given  by     j^ 
the  landlord.  v. 

The  jury  find  that  the  lease  expired  29th  March  1801,  and  Black. 
that  notice  was  given  in  Februanj  1800  to  quit  on  the  said  29th 
March  1801,  and  that  the  tenant  had  refused  and  did  refuse  to 
complv  with  the  notice;  and  that  notice  to  quit  was  also  given 
at  divers  other  times,  particularly  on  the  25th  Janiiarij  1802. 
The  inquesc  was  held  28th  April  1802.  The  application  to  the 
justices  by  the  landlord  was  made  2Gth  April  1802. 
.  TheactofAssemblv  requires  that  it  should  be  made  to  appear 
to  the  jury  "  that  the  term  is  fully  ended,  and  that  demand  had 
"•  been  made  to  leave  the  premises  three  months  before  the  ap- 
"  plication  to  the  justices." 

The  objection  raised  by  the  counsel  of  the  tenant  is  this,  that 
although  the  term  expired  29th  March  1801,  yet  as  the  land- 
lord did  not  proceed  to  remove  the  tenant  agreeably  to  his  first 
notice,  the  tenant  stood  in  the  situation  of  a  person  who  had  a 
lease  from  year  to  year;  and  being  in  that  situation,  the  land- 
lord ought  to  have  given  him  notice  to  leave  the  premises  three 

ceedinjfs  in  the  case  before  us  are  founded,  requires  but  tliree  moutbs' 
uotice,  and  provides  a  summary  remedy  for  the  landlord  instead  of  an  eject- 
ment. But  it  does  not  alter  tlic  law  witli  ref^ard  to  tlie  time  at  which  the 
notice  must  be  {^iven.  To  enable  the  landlord  to  recover,  the  Itasc  must  be 
full;:  ended,  and  the  lease  caimot  be  fully  ended  unless  tliree  months'  notice 
has  been  pivcn  before  the  endof  the  year;  for  the  tenant  is  lej^ally  in  posses- 
sion, as  Ik*  has  a  ripht  to  hold  tliree  months  after  notice;  another  year  has 
commenced,  and  by  the  agreement  whicii  tiie  law  implies,  he  is  entitled  to 
continue  in  possession  during  the  whole  of  it.  The  landlord  cannot  determine 
iiis  will  by  a  shorter  notice  than  one  for  tliree  months. 

The  practice  in  the  city  of  Pliiladctfiliia  is  I  believe,  contrary  to  the  prin- 
l[)le  on  which  this  court  now  decide;  but  I  am  not  aware  that  it  hasbctji 
KTOfriiispd  in  any  judicial  decision.  It  may  i)ro(liicc  no  inconvenience  there, 
thoiipb  it  would  be  very  injurious  if  adoptcrl  here.  It  is  for  the  interest  oi' 
both  landlords  and  tenants,  that  the  rule  should  be  as  the  court  has  stated 
it;  for  otherwise,  as  farms  are  almost  universally  let  only  at  a  jiarticularsea- 
'-'Ml  of  the  year,  the  tenant  mijcht  be  dispossessed  at  a  time  when  he  could 
not  proruri;  anotli'r  farm;  anrl  on  the  same  principle-  he  mifjlit  leave  it  :il  ;■ 
I  •rind  wiien  his  landlord  could  not  be  supjilicd  with  another  tenant. 

Proceedings  set  aside 
Cimdy  for  the  plaint ifl'.     Sit^ieajies  for  the  defendant. 

'The  reporter  is  indebted  for  the  above  note  to  Mr  President  Wti.sox.} 


36 


CASES  IN  THE  SUPREMl':  COURT 


1808. 


BOGGS 


Black, 


months  previous  to  the  29th  March  1802.  But  the  court  are  of 
'opinion  tluil  nothing  appears  on  the  record  to  shew  that  the 
tenant  was  to  be  considered  in  any  other  light  than  a  trespas- 
ser after  29th  March  1801.  It  is  not  found  that  the  landlord 
accepted  rent  which  accrued  after  that  time;  or  did  any  other 
act  which  directly  or  indirectly  implied  a  renewal  of  the  lease. 
The  jury  have  found  all  the  tacts  which  are  required  by  the  act 
of  Assembly  as  a  foundation  for  judgment  of  restitution  to  be 
awarded  by  the  justices.  This  court  are  therefore  of  opinion 
that  the  judgment  of  restitution  given  by  the  justices  was  pro- 
per, and  that  the  judgment  of  the  Court  of  Common  Pleas  re- 
versing the  said  judgment  of  the  justices,  be  now  reversed. 

Re-restitution  of  the  demised  premises  to  the  landlord,  is 
ordered. 

Judgment  reversed. 


Saturday, 
April  2. 


Desesbats  against  Berq^uier. 


lb  3361 
24    506 
77    369 


TN  this  case  the  Register's  Court   of  Philadelphia   county 
-■-  directed  an  issue  in  the  Common  Pleas  to  try  the  validit)- 


A  will  of 

personal 

property 

must  be  ex-  of  a  certain  writing  bearing  date  the  8th  of  August  1798,  pur- 

ecuted  ac-     porting  to  be  the  will  of  Jean   Theil  deceased.  The  issue  was 

cording'  to      '  °  .       "^ 

the  law  of    accordingly  formed   in  the  Common  Pleas,  and  removed  by 

the  testa-      certiorari  into  this  court,  where  the  following  case  was  made 
tor  s  uomicil  ,         .    . 

at  the  time    for  the  court  s  opinion. 

of  his  death.       u  jj   jg   ^  feigned   issue  from  the  Register's  Court  to  trv 

If  it  is  void  .    .  °  ,  ... 

by  that  law,   "  the  validity  of  a  certain  paper  writing  purporting  to  be  the 

it  will  not      cc  ^.m  of  j^^j^  j^i^^ii  deceased.   It  is  admitted  that  the  said 

pass  personal      ... 

prope.ty  in  a"  instrument^  if  it  had  been  made  by  a  citizen  of  Pennsylvania^ 

til  eign  u  xvQuld  be  a  zvilL  and  that  if  the  testator  had  been  a  citizen 

country,  al-  '  ^ 

though  it  is   "  of  the    said  state^   the  property   bequeathed  therein  would 

v'ith'aU  the   "  have  passed  thereby ,  On  the  other  side  it  is  admitted  that  the 

formality  re-"  said  Jean   Theil  was  an  inhabitant  of  f  cremie  in  the  island 

the7aws"of   "  °^'^'*  Domingo^  and  a  subject  of  France^  at  the  time  of  ma- 

tliat  country. "  king  the  said  instrument;  that  he  continued  to  reside  there  till 

"  the  time  of  his  death,  and  that  by  the  larvs  of  the  said  island 

"  the  said  instrument  is  not,  nor  Tvas  at  the  time  it  rvas  made 

"  nor  since,  a  last  -ivill  and  testament;  and  that  the  said  Jean 

"  Theil,,  iroless  this  instrument  is  established  as  a  will,  died  in- 

"  testate.  That  the  property  intended  to  pass  by  the  said  instru- 


OF  PENNSYLVANIA.  337 

"  ment,  xvhich  is  all  personal  property^  was  at  the  time  of  male-      1808. 

"  ing  thereof,  and  hitherto  has  rt-mained  and  still  remains, in  the     j)ggj.g. 

"  hands  of  persons  resident  in  and  citizens  of  Pennsylvania.  That       bats 

"  jNIr.  Desesbats  the  plaintiff  was  at  the  time  of  making  the         i>- 

"  said  instrument  an  inhabitant  of  .SY.  Domingo,  but  at  the  time  ReR^^ieu. 

"  of  the  death  of  the  said  Jean  Theil,  was  an  inhabitant  of  the 

"  island  of  Jamaica.  If  the  court  shall  be  of  opinion  that  the 

"  instrument  aforesaid  under  the  above  circumstances  is  to  be 

••'  considered  in  Pennsylvania  as  the  will  of  the  said  Jean  Theil^ 

"  then  the  probate  thereof  taken  by  consent  in  the  register's 

"  office-  in  and  for  the  city  and  county  of  Philadelphia,  to  stand 

"  valid,  it  being  admitted  to  be  in  due  form   according  to  the 

"  laws  of  Pennsylvania;  otherwise  judgment  to  be  rendered 

"  for  the  defendant,  and  the  said  probate  to  be  null  and  void." 

Tod  and  Hare  argued  for  the  plaintiff.  The  single  question 
is  whether  a  Avill  in  perfect  conformity  with  the  law  of  Penn- 
sylvania^ is  effectual  to  pass  personal  property  situated  here,  the 
testator  being  a  foreign  subject  domiciled  in  St.  Domingo^ 
where  the  will  was  made,  and  l)y  the  law  of  which  country  it  is 
void.  The  question  is  a  new  one,  and  is  not  involved  in  any  oi 
the  English  decisions  upon  intestate  succession.  These  deci- 
sions have  merelv  settled  the  law,  that  in  case  of  an  intestacy, 
the  law  of  the  intestate's  domicil  must  regulate  the  distribution 
of  his  personal  property;  a  doctrine,  that  were  it  now  for  the 
first  time  to  be  discussed,  would  encounter  many  objections. 
But  it  proceeds  in  part  upon  a  principle  which  sustains  the  pre- 
sent will:  namely,  that  since  all  succession  rt*^  intestato  is  ground- 
ed on  the  presumed  will  of  the  deceased,  his  estate  ought  to  de- 
scend to  him  whom  the  law  of  his  own  country  calls  to  the  suc- 
cession, as  the  person  whom  it  presumes  to  be  most  favoured 
by  the  intestate.  2  Erskine's  Itist.  69G.  Or  in  other  words,  that 
where  a  will  is  not  expressed,  the  law  of  the  domicil  is  raised 
up  to  execute  a  presumed  will.  Wliere,  however,  a  will  is  ex- 
pressed,the  presumption  in  favour  of  the  law  of  the  domicil  never 

arises;  that  law  is  (overlooked,  and  the  law  referred  to  by  the  tes- 
tator must  govern  his  testamentary  arrangement  I)Oth  in  form 
and  substance.  Ind'-ed  when-  the  presumption  in  iavoiw  oi  the 
domiciliary  law  is  rebutted  by  the  act  of  making  a  will,  foreign 
courts  have  deinanded  that  the  will  should  conform  to  the  law 
«f  the  place  where  the  goods  were  situated,  or  otherwise  to  he 
Vol.    I.  2  V 


ooS  CASES  IN  Tin:  bUPREiNlE  COURT 

1808.    ■  without  cflect.  Thus  in  England i\  bastard  cnjovs  the  privilege. 
~1")esks-    °*  '^^'^'^'"S  ^  testament,  wliich  docs  not  obtain  in  Scotland;  and 
RATS       accordingly   notwithstanding  such  a  testament   is    made,   his 
1--         moveables  in  .S'co^/a;;^/' escheat  to  the  crown.  2  Lord  Kahncs  Pr. 
KRquiEU.^'^^  03^^   Here  the  will  is  not  set  aside  to  let  in  the  law  of  the 
domicil,  which  would  give  the  goods  to  an  administrator  to  pay- 
debts,  to  be  in  trust  for  children,  or  if  he  had  none,  then  for 
the  ordinary,  but  that  law  being  overlooked,  the  goods  escheat 
to  the  crown.  So  in  England  a  7mncupative  will  is  sustained, 
but  it  will  not  carry  Scotch  moveables;  for  by  the  law  of  Scot- 
land^ which  is  the  only  rule  to  be  followed  since  there  is  no 
presumption  in  favour  of  the  domiciliary  law,  writing  is  essen- 
tial to  convey  moveables  from  the  dead  to  the  living.  2  Lord 
Ka'imes  335.  The  cases  from  Avhich  Lord  Kaimes  has  extracted 
these  principles,  have  therefore  decided,  that  in  the  event  of  an 
express  will,  the  testator  must  be  such  a  person  as  by  the  law 
of  the  country  where  the  moveables  are  situated  is  competent  to 
execute  the  instrument,  and  the  will  such  in  point  of  formalitx 
as  the  law  of  the  countrv  recognises.   This  may  be  going  too 
far.   It  may  be  very  hard  in  certain  cases  to  demand  this  con- 
formitv;  but  a  perfectly  safe  rule  is  to  give  effect  to  the  law  of 
the  domicil  both  in  form  and  substance  in  order  to  execute  a 
will,  but  never  for  the  purpose  of  overthrowing  it.  This  con- 
formity of  the  will  to  the  law  of  the  place  where  the  goods  arc, 
has  certainly  existed  without  being  thought  of  bad  consequence. 
In  Boxvaman  v.  Rccve^  {ci)  where  a  native  of  Holland  made  his 
will  there,  and  died  possessed  of  personal  estate  in  England^  the 
will  was  proved  in  the  latter  country,  which  it  could  not  have 
been,  if  it  was  not  in  conformity  with  the  English  law;  and  in 
11  Vin.  58.  pi.  6.  it  is  stated  to  have  been  given  in  charge  to  a 
jury  by  Justices  Doder'idge  and  Chamberlain^  that  if  a  will  of 
goods  in  England  be  made  in  France  and  proved  there,  the  ex- 
ecutor shall  not  have  action  on  this  probate,  but  ought  to  prove 
it  in  England. 

It  being  then  a<iuestion  in  which  the  law  of  the  domicil  has 
no  influence  to  defeat  us,  it  is  proper  to  urge  the  analogy  be- 
tween this  case,  and  1.  cases  of  foreign  contracts;  2.  cases  of 
mere  remedy  in  the  courts  of  the  country  where  property  or 
debtor  is  situated;  and  3.  cases  of  statutory  transfers  of 
property. 

(  a)  Free  in  Chan.  577- 


OF  PENNSYLVANIA.  339 

1 .  It  is  ti'ue  that  the  lex  loci  almost  invariably  governs,  where      i  gOS. 
such  is  the  intention  of  the  parties.  But  it  cannot  be  disputed,     pj 
that  where  a  contract  is  made  with  reference  to  another  coun-       bats 
try,  the  law  of  tlie  country  referred  to  shall  govern,  and  not  the  "f'- 

law  of  the  place.  Robinson  v.  Bland,  (a)  Thus  \n,Sir  yolin^^'}^^^^-^'^ 
Champant  v.  Lord  Ranelagh  (b^  a  bond  was  made  in  England 
and  sent  over  to  Ireland  where  the  money  was  to  be  paid,  but 
the  kind  of  interest  was  not  mentioned;  the  Lord  Keeper  was  of 
opinion  that  it  should  carry  Irish  interest.  1  Eq.  Ahr.  286. 
Now  there  is  nothing  in  a  Contract  strictly  so  called,  that  incor- 
porates or  rejects  the  lex  loci  more  than  any  other  disposition 
of  propertv,  such  as  a  gift  or  a  will.  "  In  -very  dispo.sitiou  or 
"  contract  where  the  subject  matter  relates  locally  to  England'''' 
says  Lord  Mansjield  in  Robinson  and  Bland^  "  the  law  oiEng- 
"  landnx\\%\.  govern,  and  must  have  been  intended  to  govern;" 
and  he  illustrates  his  position  bv  a  contract  concerning  stocks^ 
which  notoriously  follow  the  law  of  the  domicil  in  the  case  of. 
intestacy,  as  well  as  by  a  mortgage  and  a  conveyance  of  land. 
The  question  always  is,  what  was  the  intention  of  the  party  ? 
By  what  law  did  he  intend  his  contract  or  disposition  to  be 
tested?  That  law  and  that  alone  shall  govern.  If  personal  pro- 
pertv has  no  situs ^  it  must  be  transferred  by  contract  as  well  as  by 
will,  agreeably  to  the  domiciliary  huv,  or  the  opposite  argu- 
ment falls;  for  that  argument  is  that  moveables  follow  the  per- 
son, and  are  with  him  where  he  dies,  therefore  the  will  must 
be  such  as  is  good  in  that  place.  But  then  it  must  be  true  of 
contracts  in  the  life  of  the  party  as  well  as  of  wills;  for  the  fic- 
tion does  not  depend  upon  the  proprietor's  deatli.  Now  it  is 
clearly  untrue  as  it  respects  contracts;  for  i)\'  reurring  to  the 
laws  of  a  foreign  country  they  embody  tliem,  and  are  control- 
led thereby  both  in  form  and  substance.  There  are  instances  in 
which  an  instrument  or  contract,  invalid  in  the  country  where  it 
is  executed,  has  been  enforced  in  a  foreign  country  to  whose  law 
it  conformed;  as  in  the  case  of  stamps;  and  even  agreements 
abroad,  whicii  after  liaving  been  carried  into  c  nVci  h\  one  of 
the  parties,  would  have  been  there  the  ground  of  a  capital  prose- 
cution, have  been  enforced  against  the  other  party  in  England. 
Borr  V.  Vandall  ('),  Smith  v.  Oxcndrn.  (r/) 

(rt)  2  nurr.  1079.  {c)  1  Chn.  C„.  "0. 

<.h)  Fic.  in  Chan.  V19,  [,l)  lb.  25. 


o 


4y  CASES  IN  11  IK  SUPREME  COURT 


1808.  -•   1'^  lliose  cases  where  tlu;  (|ULbtion  is  merely  a  question 

""T^  ol  reinech',  the  law  of  the  countrv  where  the  icmedy  is  asked 

Desks-  .  „  ,  "  ,     ,  ■  , 

B^  J  s       must  umversally  govern;  the  party  must  take  his  remedy  upon 

V.  such  terms  as  the  courts  of  the  country  will  give  it  to  him, 
Berquier. -pj^jg  jg  another  principle  in  restraint  of  that  comity  on  which 
the  defendant  must  rely.  Thus  if  a  debt  be  contracted  in  Eng- 
land^ and  sued  in  Scotland^  the  English  statute  of  limitations  is 
no  bar;  2  Lord  Kaimcs  354.;  and  in  Nash  v.  Tuppcr^  (tf)  where 
a  note  was  given  in  Connecticut^  whose  limitation  is  seventeen 
years,  the  statute  of  New  Yorh^  which  limits  the  bringing  of 
suit  to  six  years  after  action  accrued,  was  pleaded  and  the  plea 
sustained.  So  in  Duple'/n  v.  Dc  Roven.  (b)  These  cases  shew 
that  what  might  be  considered  as  an  ingredient  in  the  foreign 
contract,  that  is  the  statute  of  limitations,  is  entirely  overlooked 
the  instant  the  parties  enter  the  court  of  another  country. 

3.  Statutory  transfers  of  property  have  no  effect  out  of  the 
country  where  they  are  made.  A  statute  of  Great  Britain  may 
order  a  conveyance  from  a  bankrupt  of  all  his  moveables,  and 
call  it  a  voluntary  conveyance,  but  it  will  not  transfer  his 
rnoveables  in  Scotland.  2  Lord  Kaimes  362.  Now  if  comity  to 
foreign  nations  will  in  any  case  support  a  transfer  which  does 
not  conform  to  our  law,  it  must  be  where  that  transfer  is  pecu- 
liarly the  act  of  the  nation;  but  here  the  foreign  country  re- 
fuses it;  a  fortiori  will  it  refuse  to  defeat  a  transfer,  simply  be- 
cause it  is  not  agreeable  to  the  law  of  the  domicil,  when  the 
property  is  in  its  own  countrv,  and  the  transfer  consistent  with 
all  its  laws. 

There  are  no  cases  which  militate  against  the  application  of 
these  arguments.  All  that  is  found  in  the  En^q-lish  law,  relates  to 
intestate  succession.  The  opinion  of  foreign  jurists  is  to  be 
received  with  great  caution;  they  write  with  reference  to  or 
under  the  bias  of  their  own  national  institutes  of  law.  Huberus 
in  particular,  who  has  feigned  a  case  for  argument  similar  to 
this,  is  spoken  of  with  litde  respect  in  1  Collcc.  Jurid.  116.;  and 
every  lawyer  knows  the  difference  between  an  opinion  formed 
and  defended  in  the  closet,  and  the  judgment  of  a  court  pro- 
nounced after  solemn  argument  and  deliberation.  The  dutchess 
of  Kingston's  will,  which  has  been  much  spoken  of,  and  the 
circumstances  of  which  are  given  in  1  Collect.  Jurid.  323.  does 

''«)  ]  Nftvi  Torh  T.  R.  402.  {b)  2  Vern.  540. 


OF   PENNSYLVANIA.  341 

not  touch  the  present  question.  Her  will  was  executed  accord-      1808. 
ing  to  the  law  of  her  domicil,  which  was  in  England^  ^"^^~Deses^ 
Target  was  of  opinion  it  was  good  in  France.  Our  argument       ^^^.5 
is,  that  although  the  law  of  the  domicil  may  be  called  in  to         v. 
support  a  will,  it  shall  not  be  used  to  overthrow  it.  Bergiuier. 

Duponceau  for  the  defendant.  Whatever  may  formerly  have 
been  the  objections  to  the  rule  which  must  govern  this  case,  it  is 
now  a  rule  of  property  as  well  established  as  any  in  our  sys- 
tem; and  it  is  one  and  the  same  rule  in  the  case  of  an  intes- 
tacy, and  in  the  case  of  a  last  will.  The  maxim  on  which  it  is 
founded  has  the  assent  of  all  nations,  mobilia  peraonam  scqiiun- 
titr,  immobiHa  situm;  and  therefore  to  every  purpose  connected 
v/ith  this  question,  the  personal  property  of  Jean  Thcil  must 
be  considered  as  accompanying  his  person  at  the  time  of  his 
death,  and  not  to  be  disposed  of  by  any  will,  that  would  not 
have  passed  property  actually  situated  in  Jeremie.   "  It  is  a 
"  clear  proposition,"  says  Lord  Loughborough  in  delivering  the 
opinion  of  the  court  in  Sill  v.  Worswick^  "  not  only  ol  the  law 
'■'-  of  England^  but  of  every  country  in  the  world  where  law  has 
"  the  semblance  of  science,  that  personal  property  has  no  loca- 
*■'  lity.  The  meaning  of  that  is,  not  diat  personal  property  has 
"  no  visible  localit)-,  but  that  it  is  subject  to  that  law  which 
*••  governs  the  person  of  the  owner.  With  respect  to  the  dispo- 
"  sition  of  it,  with  respect  to  the  transmission  of  it  either  by 
"  succession,  or  the  act  of  the  party ^  it  follows  the  law  of  the 
person.   If  he  dies,  it  is  not  the  law  of  the  country  in  which 
the  property  is,  Ijut  the  law  of  the  country  in  which  he  is,  that 
must  regulate  the  succession."   1  H.  Black.  690.  These  sen- 
timents are  confirmed  b\-  Lord  Chancellor  Thurloxve  in  Bruce 
V.  Bruce^  "  Personal  property  follows  the  person  of  the  owner, 
'*  and  in  case  of  his  decease,  must  go  according  to  the  law  of 
"  the  country  where  he  had  his  domicil;  for  the  actual  .situs 
"  of  the  goods  has  no  influence."  2  Bo.f.  and  Pul.  231.   It  is 
in  this  case  that  we  find  a  commentary  upon  the  principles  of 
Scotch  law,  cited  from  J^ord  Kaimes;  principles  that  are  thirc 
and  in  subsequent  cases  expressly  overruled,  and  slated  to  have 
been  framed  by  following  the  lex  loci  rci  .v?/rt',  in  ojiposition  to 
the  rules  of  the  civil  law  and  the  jus  gentium.,  which  give  an 
exclusive  consideration  to  the  law  of  the  domicil.    liut  even 
Lord  Kaime.H  can  spc  the  sense  of  the  rule  which  regulates 


342  €ASl-:S  IN  THE  SUPRLiME  COUKT 

1808.      *^''^  succession  to  tx  Scotc/ii)}aii\'{  moveables,  both  at  home  aud 
Df.ses-     '^^'"^^1  according- to  the  Scotc/i  law;  and  the  error  of  limiting 
HATS      this  rule  to  a Srotcliman^  is  now  finall\-  corrected  in  that  country 
V.         b\-  Bruce  and  Bruce. 
Berqlieu.      These  principles  alone  would  defeat  the  plaintift's  claim;  lor 
most  clearly  the  will  in  this  case  would  have  been  good  for 
nothing,  if  the  property  had  actually  been  in  yeremic.  But  it  is 
said  they  apply  to  the  case  of  an  intestacy,  and  to  cases  in  which 
the  law  and  not  the  party  makes  the  regulation.  The  precise 
question  has  perhaps  never  been  litigated  in  Enghind;  but  the 
opinions  of  learned  men  wliose  writings  are  respected  by  all  the 
world,  and  are  received  as  authority  on  this  subject  as  a  branch 
of  the  law  of  nations,  are  conclusive  of  the  point.  In  Holland  a 
last  will  and  testament  mav  be  made  before  a  notarv  and  two 
witnesses;  in  Friezeland  it  is  of  no  effect  unless  established  and 
M'itnessed  by  seven  witnesses.   A  Frizian  makes  his  will  in  his 
own  country  before  a  notary  with  two  witnesses,  and  it  is  car- 
ried into  Ho llojid  and  demand  made  of  the  goods  found  there; 
"  it  will  not  be  granted,"  says  Huberiis  "  because  not  made  in 
'•'  a  valid  manner  at  first,  being  made  contrary  to  the  laws  of 
"the  place."  Hub.  vol.  2.  B.  1.   Tit.  3.  p.  26.  3  Dull.  372. 
This  is  exactly  our  case.   Vattel  says,  "  The  validity  of  a  tcsta- 
"  ment,  as  to  its  form,  can  only  be  decided  by  the  judge  of  the 
'•  domicil,  whose  sentence  delivered  in  form  ought  to  be  every 
"  where  acknowledged."  B.  2.  sec.  85.;  and  in  Denizart's  Col- 
lection dc  Dech'ions^  Tom.  \v.p.  515.,  we  have  a  confirmation 
f)f  the  same  principle  in  terms  still  more  explicit.  "  Mais  ce 
"  n'est  pas  assez  que  la  volonte  du  testateur  ait  ete  libre  et 
"  saine,  il  faut  encore  qu'elle  ait  ete  cxprimee  avec  les  formes 
''  qu'exige  la  loi  du  domicile  dans  lequel  le  testament  a  ete 
"  fait;"  his  will  must  be  expressed  in  the  form  required  by  the 
kvwofthc  domicile  in  which  the  testament  has  been  made.  To  the 
same  pilrposc  is  2  Wolf.  201.  The  opinion  of  Monsieur  Target 
on  the  dutchess  of  KingstoJi's  will,  is  on  the  same  side.  I'he 
dutchess  of  Kingston  was  an  Englishwoman^  who  was  autho- 
rized by  the  king  or  France  to  acquire  property  in  that  king- 
dom, and  to  dispose  of  it  by  gift,  last  will,  or  otherwise.  She 
never  abdicated  her  country  or  her  home,  but  she  resided  and 
died  in  France.  Her  will  was  made  in  conformity  with  the  law 
o{  England;  but  had  she  been  obliged  to  follow  the  form  estab- 
lished by  the  custom  of  Paris^  it  would  have  been  null.   Mr. 


OF  pi:nnsylva><ia.  343 

Target,  who  examines  the  question  ^\■l^d\  great  ability,  gives  it      1808. 
as  his  decided  opinion,  that  "  as  soon  as  she  had  fulfilled  the     d^^^^ 
"■  formaliiv  prescribed  by  the  law  of  her  country,  it  must  be      bats 
"  concluded  that  the  form  of  her  will  was  regular."   1  Collect.         ~^- 
Jurid.  329.  In  fitct  it  being  setded  by  the  cases  oi  Bruce  v.  ^^^^'^'^^^• 
Bruce,  Omviantif  v.  Bingham,  and  Sornervills  v.  Lord  Somer- 
ville,  (a)  that  the  lex  loci  ret  sitce  is  in  personal  property  com- 
pletely out  of  the  question,  and  that  the  succession  ab  intesiato 
must  be  according  to  the  law  of  the  intestate's  domicil,  Avhat 
possible  argument  can  there  be  for  introducing  a  different  rule 
in  the  case  of  a  last  v»ill,  and  treating  moveables  in  this  single 
instance  as  fixed  to  the  country  where  they  happen  to  be?  The 
notion  would  be  productive  of  infinite  mischief.   One  man  in 
a  thousand  may  not  know  the  law  of  last  wills  in  a  foreign 
country,  but  all  men  know  it,  or  may  easily  know  it,  in  their 
own.  Where  one  will  is  maintained  by  the  doctrine,  many 
must  be  overthrown;  and  in  case  of  personal  possessions  in 
several  countries  whose  laws  are  different,  the  testator  must 
either  die  intestate  of  part  of  his  property,  or  execute  a  will  to 
incorporate  all  their  varying  forms,  which  may  be  impossible. 

AnaIog\-  is  at  all  times  a  dangerous  argument  in  the  law.  In 
the  argument  of  the  plaintiff  it  derives  all  its  weight  from  a 
misconception  of  the  true  question.  This  is  not  a  case  of  foreign 
contract  or  disposition  where  the  subject  matter  relates  lo- 
cally to  Pennsifhajiia;  it  is  a  question  whether  property  situated 
in  contemplation  of  law  in  a  foreign  country,  can  be  disposed ot 
by  a  will  which  is  void  by  the  laws  of  that  country.  Neither  is 
it  a  question  of  remedy  to  which  the  cases  cited  apply;  it  is  a 
question  of  title  in  the  i)laintlll'  which  stands  or  falls  with  the 
instrument  under  which  he  claims;  and  the  objection  is  not  tiiat 
the  mode  of  enforcing  his  rights  is  or  is  not  agreeable  to  the 
foreign  law,  but  that  he  has  no  right  of  any  kind.  Finally  it  is 
not  a  question  whether  any  law  of  a  foreign  country  shall  have 
an  cxlraterritorial  force,  although  it  is  most  evident  that  by  a 
comity  whlcli  is  essential  to  the  well  being  of  the  world,  this 
«fl'ect  is  frequently  permitted;  but  it  is  a  question  whether  per- 
sonal property  is  not  by  the  understanding  of  ever)-  civilian 
;md  common  lawyer  in  existence  appurtenant  to  the  person,  the 
person  always  connected  with  his  (l'<mi(il,  -md  the  law  of  the 


344  CASES  IN  THE  SUPREME  COURT 

1808.      domlcil  operating  therefore  upon  the  personal  property  by  vir- 
^  tue  of  its  own  intrinsic  unquestionable  authority. 

BATS 

7'.  TiLGHMAN  C.  J.  This  case  was  very  well  argued.  Every 

BERquiEK.jj^jpg  jj^jjj.  ingenuity  and  industry  could  produce  was  brought 
before  the  court.   If  the  case  had  been  entirely  new,  it  would 
have  been  extremely  difficult  to  decide.  But  although  no  autho- 
rity directly  in  point  has  been  produced,  yet  some  principles 
have  been  established  by  adjudged  cases,  which  bear  strongly 
on  the  question  before  us.  It  seems   to  have  been  formerly 
taken  for  law  in  Scotland^  that  the  goods  found  there  of  a  per- 
son who  died  intestate  in  England^  should  be  distributed  ac- 
cording to  the  Scotch  law.  But  since  the  cases  of  Bruce  v. 
Bruce^  Ommaney  v.  Bingham  and  Somerville  v.  Lord Somervillc^ 
it  must  be  considered  as  settled  that  "  the  succession  to  th-e 
"  personal  estate  of  an  intestate  is  to  be  regulated  according  to 
"  the  law  of  the  country  of  which  he  was  a  domiciliated  inhabi- 
"  tant  at  the  time  of  his  death."  If  this  is  the  rule  in  case  of 
intestacy,  why  should  not  the  same  rule  prevail  with  respect  to 
last  -wills?  It  is  only  with  the  view  to  promote  the  general  con- 
venience and  happiness  of  mankind,  that  any  country  allows  the 
laws  of  a  foreign  nation  to  operate  in  any  instance  on  property 
within  its  territory.  It  is  supposed  that  every  man  is  best  ac- 
quainted with  the  law  of  his  own  country,  and  that  when  he 
dies  intestate,  it  is  his  desire  and  expectation  that  his  personal 
property  wherever  situated,  should  be  distributed  according  to 
that  law;  and  to  gratify  this  reasonable  desire,  it  is  the  prac- 
tice of  civilized  nations  to  extend  their  courtesy  towards  each 
other  so  far  as  to  permit  the  law  of  the  domicil  of  the  intestate 
to  prevail.  This  the  counsel  for  the  plaintiff  candidly  admit. 
But  they  contend  that  the  establishment  of  the  will  of  Jean 
Theil  will  answer  the  purpose  which  should  always  be  kept  in 
view,  that  is  to  say,  it  will  carry  the  wishes  of  the  foreigner  into 
effect.  It  is  very  true  that  in  this  instance  it  willj  but  we  must 
take  care  how  we  establish  a  principle,  which  at  the  same  time 
that  it  carries  the  will  of  one  man  into  effect,  may  tend  to  de- 
stroy the  will  of  one  hundred  others.  If  we  say  that  the  will  shall 
itand  good  because  it  is  agreeable  to  our  law,  although  contra- 
ly  to  the  law  of  the  testator's  domicil,  then  we  establish  the 
principle  that  with  regard  to  last  wills,  the  law  of  Pennsylvania^ 
and  not  the  law  of  the  domicil,  shall  prevail.  It  will  follow  that 


OF  PENNSYLVANIA.  345 

the  wills  of  foreigners,  made  according  to  the  law  of  their  own  1808. 
country,  are  to  have  no  effect  on  moveable  propert}'  found  here,  ia 
unless  they  are  agreeable  to  our  law.  This  may  produce  very  bats 
mischievous  consequences,  not  only  to  foreigners  who  have  '^• 
property  here,  but  to  our  own  citizens  who  juay  have  property  *^^^^^' 
abroad.  For  we  must  expect  that  other  nations  will  pay  no 
greater  regard  to  us,  than  we  pay  to  them.  We  are  a  commer- 
cial people,  and  should  be  forward  in  reciprocating  those  acts  of 
courtesy  which  the  nations  of  Europe  are  in  the  habit  of  practis- 
ing. Indeed  we  have  always  been  sensible  of  the  importance  of 
paying  a  high  regard  to  the  law  of  nations.  It  is  considered  as 
incoqjorated  with,  and  forming  a  part  of,  our  common  law.  (1 
Doll.  114.  Respub.  v.  De  Longchamp.')  Where  a  debt  due  from 
one  Englishman  to  another  has  been  discharged  by  a  commis- 
sion of  bankrupt  in  England^  we  recognise  such  discharge  here. 
England  pays  the  same  regard  to  the  bankrupt  laws  of  other 
nations,  as  appears  by  the  case  of  Potter  £s?c.  v.  BrowUy  5  East. 
124.,  where  Lord  C.  J.  Elkmboroiigh  in  delivering  his  opinion 
says  "  it  is  every  day's  experience  to  recognise  the  laws  of  fo- 
"  reign  nations  as  binding  on  personal  property;  as  on  the  sale 
*'  of  ships  condemned  as  prize  by  the  sentence  of  foreign  courts, 
"  and  the  succession  to  personal  property  hij  ivill  or  intestacy,  of 
"  the  subjects  of  foreign  countries."  Let  us  now  examine  what 
is  the  conduct  of  France  (for  Thcil  was  a  subject  of  France)  in 
cases  of  this  kind,  /"rawce  recognises  the  bankrupt  laws  of  other 
countries.  We  find  that  the  dutchess  of  Kingston's  will,  made 
in  France  according  to  the  law  of  England,  was  held  good,  for 
the  disposition  of  her  moveable  property  in  France.  Collect, 
yurid.  24-2.  2Gth  Oct.  irSG.  And  the  case  from  4  Denizart 
Testament  5\S.  asserts  the  principle  that  the  will  must  be  ac- 
i  ording  to  the  law  of  the  domicil.  No  cases  were  cited  to  shew- 
that  any  respectable  nation  held  different  sentiments;  and  I 
think  it  may  be  concluded  from  a  full  view  of  the  suliject,  that 
to  regulate  the  disposition  of  the  moveaI)le  propcrf)'  of  deceased 
persons  act  orrling  to  the  law  of  their  domicil,  whether  they  die 
testate  or  intestate,  is  best  calculated  to  promote  the  general 
convenience  of  the  world,  and  most  agreeal)lc  to  those  princi- 
ples which  liav«-  been  established  by  judicial  decisions  among 
the  most  enlightened  nations.  I  ant  therefore  of  opinion  that 
the  paper  set  up  for  the  will  n{  Jean  Thcil  is  not  a  valid  will, 

inrl  that  judgment  be  entered  for  the  defendant. 
Vni .  I.  2  X 


;346  CASES  IN  THE  SUPREME  COURT 

1808.  Yeates  J.  It  has  been  remarked  by  Lord  Chancellor  Lough' 

'~l)zsKS^  ^°'  °"^^'^  C^)  that  if  the  question  whether  the  clomicil  of  the  party 
UATs      deceased  should  decide  upon  the  succession  to  his  personal 
^•-         property,  was  quite  new  and  open,  the  point  appeared  to  him 
'^^*^''^^^' susceptible  of  a  great  deal  of  argument.  Numerous  decisions  in 
the  Court  of  Session  in  Scotland^  with  one  single  exception,  as- 
serted the  negativt  of  that  proposition.  The  different  authori- 
ties on  this  head  are  collected  in  a  note  subjoined  to  Bruce  v. 
Bruce    reported  in  2  Boa.  and   Pul.    129.   But  the  point    is 
now  settled  by  cases  {b)  determined  in  the  British  House  of 
Peers. 

The  master  of  the  rolls,  Sir  Richard  Pepper  Arden  (c)  in  1801 
has  deduced  the  three  following  rules,  as  the  result  of  the  dif- 
ferent authorities  on  the  subject.  1st,  That  the  succession  to  the 
personal  estate  of  an  intestate  is  to  be  regulated  by  the  law  of 
the  country  in  which  he  was  a  domiciled  inhabitant  at  the  time 
of  his  death,  without  any  regard  whatever  to  the  place  either  of 
the  birth  or  the  death,  or  the  situation  of  the  property  at  that 
time.  2dlv,  That  though  a  man  may  have  two  domicils  for  some 
purposes,  he  can  have  only  one  for  the  purpose  of  succession; 
and  3dly,  that  x\\c  forum  originis  is  to  prevail  until  the  party  has 
not  only  acquired  another,  but  has  manifested  and  carried  into 
execution  an  intention  of  abandoning  his  former  domicil,  and 
taking  another  as  his  sole  domicil. 

The  domicil  by  the  civil  hiAV  is  there  described  "  ubi  quis  la- 
"  rem  rerumque  ac  fortunarum  suarum  sjimmam  con&tituit.^^ 
But  Sir  Richard  censured  this  definition  as  too  vague  and 
difficult  of  application;  and  thought  Bijnkcrshoek  was  very  wise 
in  not  hazarding  a  definition  of  the  term.. 

The  counsel  for  the  plaintiff  in  this  case  in  the  course  of  their 
arguments  have  not  denied  the  authority  of  these  rules;  but 
they  have  contended  that  they  appl)-  only  to  cases  of  persons 
dying  intestate,  where  according  to  2  Erskiue  697  the  law  of 
the  domicil  is  considered  as  the  presumed  will  of  the  party, 
.and  declaratory  of  his  intention;  and  that  the  same  ought  not 
and  cannot  possibly  control  the  solemn  intention  of  the  party 

(«)  3  Vez.jr.  200. 

(/O  3  Vez.jr.  200.  2  Bos.  and  Pul.  239.  1  //.  Bl.  690.   5  Vcz-y.  786.  4  T.  R. 
1 2A.  Hvhere  ell  the  authotitiet  in  the  civil  lafj  are  cited. 


OF  PENNSYLVANIA.  347 

declared  by  his  last  will  to  take  effect  after  his  death.  I  have      j  gOS. 
no  hesitation  in  asserting  that  the  ingenious  observations  o^~~^eses^ 
those  gentlemen  struck  me  forcibly  at  the  tin\e;  and  my  ideas       gy^Ts 
of  the  justice  and  equity  of  the  plaintiff's  claim  powerfully  in-         t. 
creased  the  effect  of  those  first  impressions.    But  on  a  fuller  ^^nquiEB. 
research  of  the  books  and  more  mature  deliberation,  I  felt  my- 
self constrained  to  abandon  my  private  opinion  of  the  supposed 
honesty  of  the  plaintiff's  demand.  This  part  of  the  lex  gentium 
is  founded  on  the  mutual  courtesy  of  independent  governments, 
looking  forward  to  the  common  advantages  and  good  harmony 
of  civilized  nations.  The  principle  equally  applies,  whether  the 
individual  makes  a  will  or  not  in  a  foreign  country.  The  goods 
of  individuals  in  their  totality  ought  to  be  considered  as  the 
goods  of  the  nation  in  regard  to  other  states.  They  in  some 
sort  really  belong  to  it,  from  the  right  it  has  over  the  goods  of 
its  citizens;  because  they  make  a  part  of  the  sum  total  of  its 
riches  and  augment  its  power;  and  because  a  nation  has  an  in- 
terest in  the  protection  it  owes  to  its  members.  The  foreign 
jurists,  Vattel  (a),  Huberus  (^),  Wolfe  (c),  Denizort  (d)^  Tar- 
get (<•),  and  Lord  Kuimes  {f)^  severally  assert  that  the  law  of  the 
domicil  shall  govern  as  to  the  regulation  of  the  moveable  pro- 
perty of  a  subject  or  citizen  dying  in  a  foreign  country;  and 
that  the  validit}-  of  his  testament  as  to  its  form  can  only  be  de- 
cided by  the  judge  of  the  domicil,  whose  sentence  delivered  in 
form  ought  to  be  every  where  acknowledged.  It  has  been  said 
that  Sir  fames  Ufarriott  has  spoken  lightly  of the///a7t'(7io/;,9of 
Hiihcr;  but  it  is  well  known  that  Lord  Mansfield  has   cited  his 
work  with  approbation;  and   Mr.  Har grave  {£)  has  declared 
that  his  writings  on  the  civil  law  are  much  esteemed.  Accord- 
ing to  Lord  Chancellor  Thnrloxvc  in  Bruce  v.  Bruce  (li)  decided 
in  the  British  House  of  Lords  in  A/)r/l  1790,  (i)  personal  pro-  • 

pertv  follows  the  person  of  the  owner,  and  in  case  of  his  de- 
cease^ must  go  according  to  the  law  of  the  country  where  he  had 
his  domicil;  for  tiie  actual  situs  of  the  goods  has  no  influence. 


(rt)  Vuail,  154.  s.Hj.  (SJ  Pnnc.  Equ.  3.56.  ////.  3-  c.  8.  sec. .". 

(i)  Huhcriix,  V(,i.2.  Ub.  1.  tit.  3.  (^)  Co.  Litt.  80.  b.  Hargravc's  notr. 

(c)  ■-'  Woi/e,  201.  (/i)  2  Bos.  Isf  Put.  229.  in  noth. 

id)  Denizart,  4  Tit.  Ttstanier.t.  515.  (/)  2  Bos.  b  Put.  2.10,  231 
(c)  Collect  Jurid.  242.  (324  ) 


348  CASES  IN  THE  SUPREiME  COURT 

1808.      l-'Orcl  Chief  Justice   Kentjon  in    1791   has  said  (rt)  generally 

-  speaking  it  must  be  admitted  tiiat  personal  property  must  be 

BATS       govi  rued  by  the  laws  of  that  country  uhtrc  the  owner  is  domi- 

V.         ciled.  Lord  Chancellor  Loiighhorongh  in  1796  has  declared  (J)) 

Bebciujku.  ^j^m  j[jg  ^Qy^,  ^^^  i^^y  jl^^f  [)^^.  ij^^y  of  the  country  where  the  domi- 

cil  is  decides,  wherever  the  personal  property  is  situated.  Ac- 
cording to  Sir  Richard  Pepper  Arden  in  1801,  (r)  there  is  not 
a  single  dictum  from  which  it  can  be  supposed  that  the  place  ot 
the  death  shall  make  any  difference.  It  is  evident  therefore  that 
by  the  law  of  nations  as  well  as  by  the  British  decisions  the 
general  rule  at  least  is  clearly  established  to  be  in  favour  of  the 
defendant;  and  it  was  incumbent  on  the  plaintiff  to  shew  that 
the  making  of  a  will  under  the  circumstances  of  this  case  form- 
ed an  exception.  This  has  not  been  done;  and  it  cannot  be  said 
with  propriety  that  when  the  word  succession  is  made  use  of 
without  a  particular  reference  to  an  intestacy,  that  it  necessarily 
excludes  the  taking  under  a  will.  But  we  have  more;  we  have 
an  authority  in  point.  In  (d)  Sill  v.  Worswick  determined  in 
1791,  we  find  that  Lord  Chief  Justice  Loughborough  expresses 
himself  in  these  strong  terms:  "  It  is  a  clear  proposition  not 
"  only  of  the  law  of  England  but  of  every  country  in  the  world, 
"'  where  law  has  the  semblance  of  science,  that  personal  proper- 
*^'  ty  has  no  localit}';  with  respect  to  the  disposition  of  it,  with 
"  respect  to  the  transmission  of  it,  either  by  succession  or  by 
"  the  act  of  the  party ^  it  follows  the  law  of  the  person."  Of  the 
signification  of  the  words,  act  of  the  party ^  there  can  be  no 
doubt.  The  transmission  of  a  man's  property  to  others  arises 
from  civil  institutions,  and  is  the  subject  matter  of  positive  law. 
My  former  feelings  on  the  justice  and  equity  of  the  plaintiff's 
claim  have  been  repressed  by  considerations  of  the  imperious 
necessity  of  our  strict  adherence  to  uniform  established  rules. 
In  Bempdc  v.  Johnson  alreadv  cited,  Lord  Loughborough  de- 
clared the  case  of  Sir  Charles  Douglas  came  before  the  House 
of  Lords  under  circumstances  that  affected  the  feelings  of  every 
one;  for  the  consequences  of  the  judgment  which  the  House 
of  Lords  found  themselves  obliged  to  give,  were  both  harsh 

(a)  4  T.  R.  V)2.  (c)  5  Fez.  jr.  788. 

(i)  3  Fez.  jr.  200.  (ti)  1  //.  £i.  690. 


OF  PENNSYLVANIA.  349 

and  cruel;  and  if  the  particular  circumstances  raising  very  just  1808. 

sentiments  in  every  mind,  could  prevail  against  the  uniformity  £)£gj,g_ 

of  the  rule  it  is  so  much  the  duty  of  courts  of  justice  to  estab-  bats 

lish,  there  could  be  no  case  in  which  the  feelings  would  have  v- 
ed  one  further.                                                                                  BEuquiER. 

On  the  whole  matter  I  find  myself  constrained  to  deliver  my 
opinion,  that  judgment  should  be  entered  for  the  defendant. 

Smith  J.  concurred. 

Brackenridge  J.  Subsequent  to  the  argument  in  this  case 
I  examined  the  authorities  cited,  and  the  civilians  generally  on 
the  subject.  An  abstract  of  the  investigation  with  my  conclu- 
sion has  been  mislaid,  and  cannot  now  be  recurred  to.  But  it 
will  suffice  to  say,  at  this  time,  that  my  conclusion  was  decisively 
against  the  will,  and  in  favour  of  the  successor  ab  intestato.  («) 

Judgment  for  defendant. 

(rt)  The  case  of  Desesbats  v.  Berquier,  wliicli  decides  the  effect  of  domicii 
upon  a  will  of  moveables,  and  the  follow  in;j  case  of  Guier  and  0' Daniel,  which 
contains  a  very  full  exposition  of  the  principles  by  which  domicil  is  ascer- 
tained, are  the  only  cases  in  Pennsylvania  in  wliich  these  questions  have 
been  solemnly  discussed  and  settled.  The  reporter  is  therefore  induced  to 
connect  them  in  this  manner. 

The  case  arose  in  the  Orphan's  Court  for  the  city  and  county  of  Philadel- 
fjhia,  between 

■m    SrEVHEN  GuiER,  claiminjc  as  the  father  of  Thomas  GiriER  deceased  in- 
:m        testate,  and   Francis  O'Da.mei.  and  Wili.i.vm   Younc;,  ciaimin}^  on 
beljalf  of  the  brotiiers  and  sisters  of  the  intestate. 

THE  sum  of  1400  dollars  was  in  dispute  under  tlic  fojlowinp  circum- 
stances. Thomat  Guier,  the  intestate,  was  the  captain  of  a  vessel,  and  was 
murdered  in  the  West  Indies  in  1801.  Tiie  mouty  in  controversy  was  part  o^ 
the  proceeds  of  certain  coffee  whicli  can)e  to  J'/iiladelp/iia,  and  was  sold  on 
liis  account  after  his  death.  O' Daniel  and  Tuung  claimed  it  lor  liib  brother 
and  sisters  by  the  law  of  Delaviarc;  the  father  claimed  it  for  himself  by  the 
law  of  Penmylvani a;  and  the  question  for  the  Court  was,  I)y  whirli  lau  the 
distribution  should  be  directed. 

The  facta  were  these:  Stephen  Guier  the  father,  and  his  family,  including 
the  intestate  at  that  time  a  minor,  removed  lioni  the  state  of  Qmnccticut  to 
JJelaiuare  in  March  17'J5;  where  they  settled  on  a  fai  m  belonging- to  his  son 
Gideon,  who  was  alreatly  resident  there.  In  the  same  year  Tltouian  sailed 
from  Wilmington  in  Delaviare,  as  a  sailor  in  a  vessel  commanded  by  Gideon,- 


150  CASES  IN  THE  SUPREME  COURT 

1808. 


Wednesday, 
April  bill 


Lessee  of  Nei  f  against  Nett. 


It  isnotnc-   M^HIS  was  a  motion  by  Rush  and  Hopkinson  for  the  defen- 

cessaiyto        X    dant,  to  remove  this  cause  from  the  general  to  the  special 

entitle  a  .,.,,,.,,,  ,  , 

party  to  a     jury  list,  although  it  had  been  more  than  three  years  at  issue. 

special  jury  ''j^^j^^    ^^.1;^,^  qj^  ^j^^  ^cts  of  Assembly  2St.  Laws  267.  691 .,  which 

that  tlie  at-  •'  .  .       .  -  •      ■  i_       •  r 

torneyshould  entitle  parties  to  a  special  jury,  and  put  no  limit  to  the  time  01  ap- 
ccitify  that    piyinrr  for  it;  and  also  on  a  case  between  Hall  and  Vanda^rift  at 

It  IS  not  111-      I     -         o  '  11 

tended  for    the  last  term,  in  which  the  court  allowed  the  change  to  be  made, 

delay.  1  here  jjf^gj.  ^^^  cause  had  been  several  years  on  the  general  jury  list. 
IS  no  time  .      _  •'  °  o      j 

limited  with-  It  was  essential  they  said  in  this  case,  because  the  controversy 

party  mu^t  ^^^  interested  a  large  community,  and  it  was  highly  probable 
apply  for  a  from  the  mode  of  returning  a  general  jury,  the  defendant  might 
special  jury.  )^r^y^  q^  jj^g  pannel  some  of  his  decided  opponents. 

and  constantly  afterwards  followed  the  sea.  In  a  second  voyage  with  Gideon 
from  IVihnington,  he  was  cast  away,  and  returned  to  Wilviingtoti.  In  the  w  inter 
of  1796  he  lived  in  Gideon's  house  in  Wilmington,  and  there  went  to  school  to 
learn  navi^ration.  In  March  1797,  he  took  a  protection  from  the  Collector  of 
Fhiladelphia  and  sailed  from  tliat  port.  From  1796  to  1798,  durin,^  some  i)art 
of  which  period  he  wasof  age,  he  always  boarded  when  ashore  with  Gideon's 
widow  in  Wilmington,  where  he  kept  his  trunks,  clothes,  books,  and  papers; 
and  from  1798  to  1800  he  boarded  when  ashore  at  an  inn  in  the  same  town. 
In  1800  he  became  a  member  of  a  Freemason's  Lodge  at  Wilmington,  and 
contributed  his  proportion  of  the  room-rent.  In  the  summer  of  1801  he  went 
to  Connecticut  on  a  \isit  to  his  relations;  but,  except  in  1797  when  lie  sailed 
from  Philadelphia,  and  once  when  he  sailed  from  Neia-Tork,  all  his  voyages 
from  1795  to  1801  began  at  Wilmington,  during  which  period  he  was  succes- 
.sively  seaman,  mate,  and  captain.  All  his  owners  resided  at  Wilmington.  The 
protection  from  the  Collector  at  Philadelphia  stated  him  to  be  twenty  three 
years  of  age;  but  several  witnesses  swore  to  his  being  under  age  when  he 
first  went  to  Delavcare.  The  bank  of  Wilmington  required  two  indorsers  on 
his  notes,  as  they  did  on  the  notes  of  all  non-residents;  and  he  never  owned 
or  rented  a  house,  liad  never  been  assessed  or  paid  a  tax,  nor  ever  voted  at 
an  election  in  the  state  of  Delaware,  though  he  once  offered  his  vote  and  it 
•was  rejected.  In  1801  he  sailed  and  never  returned.  The  sum  in  dispute  had 
never  been  in  De.'arcare,  the  coffee  from  w  iiich  it  proceeded  having  come 
direct  from  the  Wat  Indies  to  Philadelphia. 

C  y.  Ingersoll  for  tlie  father,  argued  it  upon  three  points.  1.  That  Thomas 
Guier  liad  no  domicil  any  where.  2.  That  wliere  there  is  no  dwnicil  of  prefer- 
ence, custom  and  the  law  of  Pennsylvania  establish  the  lex  loci  rci  sit,v  as  the 
rule  of  succession  to  personal  as  well  as  to  real  property.  3.  That  the  /ocfw 
ret  sitx  being  Pennsylvania,  and  no  domicil  of  preference  being  shewn  else- 
where, by  the  law  of  Pennsylvania  the  father  was  entitled  to  the  succession. 

Hopkinson  and  Rodney  for  the  Dela'Oiare  claimants. 


OF  PENNSYLVANIA. 


351 


Wallace  opposed  the  motion  on  this  ground,  that  the  agree-  1808. 
ment  of  the  attornies  of  this  Court,  which  had  been  made  a  rule  Lessee 
of  the  court,  demanded  as  a  prerequisite  to  a  special  jury,  that  of 
the  attornev  should  certify  it  was  not  intended  for  delay.  It  was 
true  that  no  affidavit  of  defence  was  required  by  law  in  an  action 
of  ejectment,  but  the  certificate  was  an  independent  matter. 
Here  delay  would  be  the  consequence  from  the  known  state  of 
the  special  jury  list,  the  defendant  had  been  negligent  in  not 
making  an  earlier  application,  and  there  was  no  certificate. 


Neff 
Neff. 


Per  Curiam.  The  certificate  is  not  required  by  the  act  of 
AssembU',  and  the  rights  of  the  parties  are  to  be  tested  by  that. 
The  law  limits  no  time  for  an  application  of  this  kind,  and  as 
the  court  thought  proper  to  allow  it  in  the  case  alluded  to,  it  is 
essential  to  uniformity  of  decision  that  the  motion  should  be 
granted. 


On  the  7th  July  1806,  the  opinion  of  the  Court  was  delivered  by 

Rush  President.  Tlie  case  is  embarrassed  with  little  or  no  dilTiculty,  whe- 
liier  considered  on  lepjal  principles  or  matters  of  fact.  The  qucslioii  is,  where 
w  as  he  domiciled  at  the  time  of  his  dealhr  and  by  what  law  shall  the  personal 
estate  be  distributed  ? 

It  is  necessary  to  state  botli  the  law  and  the  facts  bi'iefly-  The  ]iosition  is 
too  clear  to  be  controverted,  that  personal  estate  must  go  accordinfj  to  the 
laws  of  the  country  in  which  a  man  is  domiciled  at  the  time  of  his  death. 
There  can  be  but  one  domicil  for  the  purpose  of  distributing;  personal  es- 
tate; and  wlicn  tliat  is  ascertained,  all  sucii  property  wherever  dispersed, 
will  tfo  in  sticcession  accordincj  to  the  laws  of  the  country  in  which  the  in- 
testate was  Uut  domiciled.  Debts,  havinp  no  situs,  follow  the  person  of  tlic 
creditor;  and  the  lex  loci  rei  sit.v  is  with  great  propriety  totally  disrej^ardcd. 

A  viaii  is  prima  fticie  dumiciltd  at  the  place  vilicre  he  is  resident  at  the  time 
(,f  his  death;  and  it  is  incumbent  on  tlio.se  who  deny  it,  to  repel  this  presump- 
tion of  law,  which  may  be  done  in  several  ways.  It  may  be  shewn  that  tlie  in- 
testate was  there  as  a  traveller,  or  on  some  particular  business,  or  on  a  visit, 
or  for  thesake  of  health;  any  of  which  circumstances  will  remove  the  presump 
tion  that  he  was  domiciled  at  the /i/rtcf  of  liis  de.ith.  1.  Bos.  and  I'ul.  2:30. 

On  a  question  of  domicil  the  mode  of  livin;^  is   not  material,  whether  on 
rent,  at  lodpinps,  or  in  the  house  of  a  friend.  I'he  apparent  or  avowed  inlen 
tion  (t^  constant  residence,  not  the  manner  of  it,  con.slitutes  the  domicil. 

Minute  circumstances  in  inf|uirii-s  of  this  sort  are  taki-n  into  consideration 
the  immediate  emi<lo\menl  ol  the  ititestalc,  his  jjiiuial  |)urMiils  and  habits 
m  life,  his  friends  and  connexions,  are  circumstances  which,  thrown  into  the 
scale,  may  pive  it  a  decisive  preponderance. 

There  is  no  fixed  period  of  time  necessary  to  create  a  tloniicil.  It  may  br 
accpiired  after  the  siiortcst  residence  under  certain  circumstances;  and  un 
der  others,  the  longest  residence  may  be  insuflicient  for  the  purpose. 


;52  CASES  IN  THE  SUPREME  COURT 

1808. 


God  SHALL  against  Mar  i  am.  /'"^  fesj 


'H''ednesiiay, 
April  6th. 

The  regiila.  ^  I  ''HIS  was  an  action  of  trespass  to  recover  damages  from 
bvrepiila"  *^^  defendant  for  breaking  and  entering  the  plaintiff's 

tors  uiulcr    close,  and  removing  five  pannels   of  fence.    The   defendant 
tlieactof9th    ,       ,     ,  .,  ,   ,.,  -,  »  •   i 

March  1771,P*'^^ded  not  guilty,  and  libcriun  tenementum.  Upon  the  trial 

from  which  before  the  Cliief  Justice  at  Nisi  Prius  in  yime  1806,  the  plain- 
entered  to     tiff  proved  a  regular  title  to  a  lot  of  twenty  feet  in  breadth  by 

the  next        Qug  hundred  and  ten  feet  in  depth,  on  Third  street  in  the 
Common         -.^       ,  r  -i        •  t  •   i    i  i  •  i       i  i         •         i 

Pleas,  is  con- Northern  Liberties,  which  lot  was  stated  in  a  deed  bearing  date 

c/««jeasto  the  15th  November  1794,  from  Dr.  John  Redman  to  the  person 

the  founda-  ,.._.,.         ,  ,  . 

tionsand       under  whom  the  plaintiff  claimed,  to  be  "  bounded  northxvara 

^  f  h"^  -1  r"**    "  ^y  ^  thirty  five  feet  corner  lot,  granted  or  intended  to  be 

erected  con-"  granted  b}'  the  said  John  Redman  to  Adam  Logan.''''  He  also 

formably       shewed  that  his  lot  was  dulv  regulated  on  the  25th  Juhj  ir98, 

thereto;  but  ,  "  r       t        r 

not  so  as  to  by  the  proper  officers  under  the   act  of  9th  J/arcA   1771,  b} 

thelmes  of   j^^m-kinc:  the  lines  in  front  and  in  rear,  and  putting  stakes  at  all 

the  lot  111)011  o  '1 

which  tlicre  the  comers;  that  the  owner  of  the  Northern  lot  had  knowledge 
are  no  build- 
ings. 


of  the  regulation;  that  there  had  been  no  appeal  from  any  order 


Bynkcrshoeh,  we  are  told,  would  not  venture  to  define  a  domicil.  Vattel 
says,  it  is  a  fixed  residence,  with  an  intention  of  always  staying  there. 
It  may  be  defined,  in  our  opinion,  to  be  a  residence  at  a  particular  place  ac- 
companied with  positive  or  presumptive  f^oqf  of  continuing  it  an  unliiiiited  time; 
and  is  the  conclusion  of  law  on  an  extended  view  of  facts  and  circumstances. 
The  determination  in  the  case  of  Major  Bntcc  in  the  House  of  Lords  does 
not  militate  with  any  part  of  this  definition.  Bruce  left  Scotland  when  very 
voun"-,  and  became  completely  domiciled  in  the  East  Indies,  in  word  and  in 
deed,  by  a  residence  of  sixteen  or  seventeen  years.  Towards  the  close  of  his 
life,  and  after  makinij  a  fortune,  he  expressed  a  resolution  of  spending  the 
remainder  of  his  days  in  his  native  country,  and  accordinirly  took  measures 
to  send  his  property  before  him,  wlicn  he  suddenly  died.  It  was  held  that  he 
was  clearly  domiciled  in  the  East  Indies  in  the  first  instance,  and  that  thejn- 
tention  to  change  coidd  have  no  effect.  Though  declarations  are  good  evi- 
dence that  a  person  has  changed  his  domicil,  no  fixed  views  of  that  sort  can 
be  suppo.sed  equivalent  to  tlie  actual  abandonment  of  one  domicil,  and  the  ac- 
(|\iisition  of  another. 

The  domicil  of  origin  arises  from  birth  and  connexions.  A  minor  during 
pupil/age  cannot  acquire  a  domicil  (f  biso'wn.  His  domicil  therefore  fallovjs  thai 
of  his  father,  and  remains  until  he  acquires  another,  lu/iir/t  he  cannot  do  until  lie 
hecomei  a  person  sui  juris. 

With  respect  to  the  facts  in  the  case  before  us,  Thomas  Giticr]cft  Connec- 
ticut in  the  year  1795,  under  age,  in  company  with  his  father  Stephen,  who, 
quitting  his  native  country,  migrated  to  Dclaitiart,  and  became  a  resident  of 
•hat  state  by  acts  of  the  most  unequivocal  nature.  There  cannot  be  the  least 


OF  FEXXSYLVAXIA.  353 

of  the  regulators;  that  the  plaintiff  had  built  a  brick  house  con-      1808. 
i'ormablv  with  the  regulation,  twentv  feet  in  front  and  about  /^„rr  T7T 

-'  IjODSHALL 

twenty  five  feet  deep,  and  that  he  erected  the  fence  in  a  line  Avith  v. 

the  side  of  his  house.  The  trespass  complained  of,  was  the  de-  Mariam. 
fendant's  taking  up  this  fence  and  setting  it  down  in  the  plaintiff's 
lot,  about  two  feet  six  inches  within  the  line  of  regulation. 

The  defendant  shewed  title  to  the  before  mentioned  comer  lot 
of  thirty  five  feet,  under  a  deed  from  Redman  to  Logan  of  15th 
November  1794,  in  which  it  was  said  to  be  bounded  *■'•  yiorth- 
"  ward  by  Coates's  street.''''  He  then  gave  in  evidence  a  regula- 
tion of  the  cross  streets  in  the  Northern  Liberties^  commenced 
before  the  regulation  of  the  plaintiff's  lot,  but  not  published 
and  confirmed  until  the  5th  August  1799.  This  regulation  had 
no  connexion  with  the  regulation  of  lots,  but  was  a  distinct 
thing,  authorized  by  an  act  of  17th  April  1795;  and  the  sur- 

iloiibt  tliat  tlie  fullicr  became  domiciled  ihere.  His  son  Gideon  was  the  liar- 
binpfer  of  the  family,  and  was  acUially  a  resident  in  Delaivare  in  the  jear 
1792,  when  he  was  a  maiiied  man,  a  housekeeper,  and  the  commander  of 
a  vessel.  Induced  pn)b:djly  l>y  the  establishment  of  his  son  in  that  part  of  the 
world,  the  old  man  followed  his  fortunes,  ami  settlinj^  under  his  immediate 
auspices,  became  a  farmer;  a  mode  of  life  in  itself  more  indicative  than  any 
other  of  views  of  permanent  residence.  The  father  being  thus  domiciled  in 
Delfn.'tire,  his  minor  s'ln  Thomas  was  domiciled  there  also,  who  while  under 
ag«  never  acquired  cir  could  acijuire  a  doniicil  sui  juris.  liit  were  a  point  of 
doubtful  decision  whethor  Thuvias  was  ever  domiciled  by  any  action  of  his 
own,  DeluM'arc  would  of  course  be  his  dcmiciliuin  oiiginn,  and  the  country 
whose  law  would  re{;ulate  the  socces.>-ion  to  his  jiersonal  estate. 

Hut  we  do  not  rest  his  domicil  in  Dclaiuare  on  this  groimd:  he  acquiretl 
one  of  his  own.  From  the  time  old  Gttiir  and  family,  with  his  son  Tliomas, 
arrived  in  Delmvare,  they  seem  to  have  been  connected  with  Gideon  Guic-r, 
and  to  have  been  both  in  some  dejjree  dependent  upon  him.  He  settled  hik 
father  on  a  plantation,  and  Thninas  became  his  apprentice  in  the  seafarin)>; 
business.  Having  serveil  out  his  lime,  he  received  wa^cs  from  his  brother. 
About  the  year  17'J7  Thoinas  was  shipwrecked,  and  returning  by  the  way 
of  Nev)  Tori,  he  proceeded  not  to  Connecticut  but  to  Wilviington.  He  studied 
navigation  after  he  was  of  age  in  the  borough  of  Wihnington.  His  diligence 
and  good  conduct  recomnien<lcd  him  to  notice.  In  a  year  or  two  he  became 
a  mate,  then  a  captain  and  part  owner  of  a  vessel,  in  which  character  hu 
sailed  in  1801,  when  he  was  murdered  by  the  blacks  in  the  island  ol'  St.  Do- 
mingo. During  this  whole  peririd  we  hear  nothing  frcun  him  of  the  aniviui  re- 
verlendi.  So  far  from  it,  that  afttr  paying  a  vUil  to  hi:*  friends  in  Connecticut 
in  1800  or  1801,  he  hastened  back  lo  Wihnir.yjon  as  the  place  of  bis  em- 
ployment, and  the  residence  of  his  friends.  N<jt  a  single  witness  of  the  great 
number  who  have  been  examined  in  Connecticut  and  Delavxtrc,  ever  heard  a 
wonl  escape  his  lips  of  his  intention  to  return;  or  that  IVUmington  was  only 
the  place  of  ids  temporary  residence.  Thomas  Cuier  entered  the  world  as  an 

Vol.  I.  2  Y 


354  CASES  IN  Tin:  SUPREME  COURT 

1808.      vcyurs  \\  ho  piirormcd  the  duty,  put  tlu:  hne  (/f  Coates's  street 
CioDsiiAi.L  "^  ^'^'^  place  about  two  feet  six  inches  soutliward  of  the  accus- 
V.         tomed  liiu-.   In  consequence  of  this  the  defendant  could  not 
Maiuam.  have  his  complement  of  ground  without  interfering  with  the 
regulation  of  the  plaintifl's  lot;  and  he  therefore  moved  the 
fence.  There  was  also  some  evidence  that  the  regulators  them- 
selves had  since  questioned  their  own  regulation  of  Godshuirs 
lot,  as  being  founded  on  a  mistake  of  the  street  line;  and  that 
there  was  more  ground  to  llie  soudiward  of  tlie  plaintiff,  than 
Avas  necessary  to  satisly  all  claims. 

Upon  these  facts  it  was  argued  for  the  plaintiff,  that  the  walls 
of  his  house,  and  the  lines  of  his  lot^  w^ere  conclusively  fixed  by 
the  regulation,  and  that  the  survey  o{  Co  ales'*  s  street  not  being 

adventurer,  and  in  a  few  years  arquired  a  pood  deal  of  property.  It  is  there- 
fore reasonable  to  believe  be  felt  the  full  force  of  tbis  irresistible  cement  to 
locality  and  situation.  Tiiis  consideration  founded  (»n  interest,  furnisbes  the 
stron{(est  proof  that  he  had  fixed  on  jrihnington  as  the  place  of  his  domicil.  A 
icniark  of  the  unerrinjr  observer  of  liuman  natiu'e,  that  "  where  the  treasure 
"  is  the  heart  will  be  also,"  may  be  here  applied  with  strict  propriety. 

Several  witnesses  say  they  believe  he  bad  fixed  his  residence  at  Wilming- 
ton; others  say  they  believe  he  had  not  fixed  it  there.  This  appears  to  be 
meie  opinion.  Not  a  word  from  Giiier  himself  has  been  given  in  evidence; 
but  his  sikn'-e  on  thw  subject  is  an  argument  to  shew  his  views  were  jjerma- 
nentlv  fixed  on  that  country,  in  which  his  affairs  wore  the  most  promising 
aspect.  When  he  proposed  to  settle  his  afiiiirs,  he  does  not  think  of  CoiDirc- 
ficut,  but  of  sending  to  Judge  Booth  at  Neiv-Castle,  to  draw  his  m  ill  in  favour 
of  that  part  of  bis  family  who  were  resident  there. 

It  is  I  think  extremely  doubtful  whether  voting  and  paying  taxes  are  in 
any  case  necessary  to  constitute  a  domicil,  which  being  a  question  of  general 
law,  cannf.'f  depend  on  the  municipal  regulations  of  any  state  or  nation.  Vo- 
ting is  confined  to  a  few  countries,  and  taxes  may  not  always  be  demanded. 
Guier  was  a  seafaring  man;  and  one  of  tlic  witnesses  says  that  between  the 
14th  ^unuury  1800  and  the  15th  October  1801,  he  sailed  six  or  seven  limes. 
Is  it  any  wonder  a  single  man  thus  engaged  in  trade  should  escape  taxation 
It  frequently  happens  that  young  men  who  never  go  abroad,  are  not  disco- 
vered to  be  objects  of  taxation  till  they  have  reached  the  age  of  five  or  six 
and  twenty.  It  Guier  escaped  taxation  flirougli  the  neglect  of  the  officers  ol 
governmenl,  it  is  impossible  to  conceive  how  their  neglect  can  have  any 
effect  on  the  fpifstion  of  domifil.  The  almost  constant  absence  of  a  sailor 
from  home,  actually  effaces  fioni  bis  mind  v(-ting  at  electif)ns;  yet  it  appears 
Guier  was  present  at  one  election  and  offered  his  ticket,  which,  though  )io1. 
received,  is  a  striking  fact  to  sliew  he  considered  himself  in  the  light  of  a 
citizen.  The  ticket  not  being  received  does  not  alter  the  nature  of  the  trans- 
action on  the  part  of  Guier;  the  evidence  resulting  from  it,  of  intention  to 
settle  and  reside,  is  the  same  as  if  it  had  been  actually  receive^ 


OF  PENNSYLVANIA.  355 

tuuipleted  until  after  the  regulation,  could  make  no  impression      1808. 
on  the  cause:  but  that  at  all  events,  that  survey  did  not,  ^nd'TZZZTTTTI 

'  •-  '  \jiODSHAI.I. 

was  not  intended  to,  ascertain  wht-re  the  true  line  of  CoatOi's  -i>. 
street  was,  but  to  fix  a  line  for  its  future  course.  That  there-  Mariam. 
fore,  for  any  thing  that  appeared,  the  regulation  was  right.  Fch- 
the  defendant  it  was  said,  that  the  regulation,  so  far  as  it  re- 
spected the  unbuilt  part  of  the  lot,  was  not  conclusive,  and  that 
as  the  plaintiff's  lot  was  bounded  by  a  thirty  five  feet  corner 
lot,  the  whole  question  was,  where  the  corner  of  Coatc.s''.<i  street 
was,  which  the  survey  conclusively  shewed.  The  Chief  Justice 
charged  the  jury  that  there  could  be  no  doul)t  that  the  walls  of 
the  plaintiff's  house  were  fixed  irrevocably  in  1798,  by  a  regu- 
lation from  which  there  was  no  appeal,  but  he  would  reserve 
the  question  xvhether  the  lines  of  the  lot  xvere  also  Jixed.  That 
the  jury  might  then  consider  them  as  not  fixed;  and  if  so,  he 
thought  the  survey  was  strong  evidence  to  shew  where  the  line 

As  to  his  sailinp^  o>if  voyiige  fVom  Phlladtlphiat  at  wliicli  time  it  is  proha- 
hle  1)e  ohlaine<l  a  rcitificate  of  his  beincf  a  native  o'^  Connecticut ^wA  a  citizen 
of  the  United  State;,  they  ajipear  to  he  accidental  circumstances,  siiclj  as  may 
be  h)oke<l  foi'  in  the  life  of  a  sailoi",  a)ul  no  wise  inconii)atil)le  witli  his  resi- 
dence in  another  place. 

Employments  of  tlie  most  opposite  character  and  description  may  have 
the  same  cflect  to  prodnce  a  doniicil.  A  man  ma\'  be  alike  domiciled,  whe- 
ther he  supports  liimself  by  plouphiuc;'  the  fields  of  his  faini,  or  the  waters  of 
the  ocean.  It  is  not  exclusively  by  any  particular  act  that  a  domicil,  gene- 
rally speakinpr,  is  acrpiired;  but  hy  :i  train  iif  ccm/uct  manifesting  that  the 
countr\'  in  which  he  died  was  the  place  of  his  clioice,  and  to  all  appearaiu-i-, 
of  his  intended  residence.  The  snilor  who  spends  whole  years  in  conibatin^- 
the  winds  and  w  aves,  and  the  contented  hnsbandman  whose  devious  sU  ps 
seldom  i)ass  tlie  limits  of  his  f:irm,  Jnay  in  their  dillercnt  walks  of  life,  exhi- 
bit ecpial  evidence  of  being  dcmiiciled  in  a  country.  Every  circumstance  in  the 
conduct  of  old  Guicr  and  his  son  Thnnios,  taking  into  view  the  unsettled 
mode  of  life  of  the  latter,  anijrdsthe  fiUlest  proof  that  they  we>e  both  domi- 
ciled in  Dc/mvnrc.  If  llie  proof  be  stronger  in  either  case,  it  is  in  the  case 
of  T/i'/VKit,  who,  though  employed  in  traversing  the  globe  from  clime 
to  clime,  constantly  returned  to  Wilminvion,  the  source  and  centre  of  his 
business,  the  seat  and  abode  of  his  friends  and  rnnnexions.  His  "  heart 
*'  untravillcd"  :ippears  to  have  been  imnioveabl}  fi.\etl  on  the  spot,  to 
which  he  was  attached  by  tlie  powerful  tic  of  interest,  and  the  strongest  obli- 
gations of  social  duty;  and  never  for  a  moment  to  ha\c  pointed  a  wisli 
to  any  other  coniitiy. 

We  arc  of  opinion  'Vhajnas  Guicr  was  domiciled  in  the  state  of  Ik- 
laijare,  during  puf>illagc;  anrl  that  he  was  also  domiciled  there  after  he 
became  tui  juris;  and  do  <lecrce  that  his  personal  ])roperly  hr  distriliuted 
liTordin^  to  tin-  lu^ct  «J  ihe  state   of   Dr.X-AWAHE. 


356  CASES  IN  THE  SUPREME  COURT 

1808.      of  Co(ites\s  street  was,  and  where  the  defendant's  lot  began. 
GoDSHALL  The  jury  however  found  a  verdict  for  the  plahuiif. 

~'. 
Mariam.  a  motion  for  a  new  trial  was  made  by  the  defendant's  coun- 
sel, because  the  vertlict  was  against  law  and  evidence;  and 
this  motion  and  the  point  reserved  were  now  argued  by  Binncif 
for  the  plaintiff,  and  by  Jli/nor  and  Hopkinson  for  the  defen- 
dants; but  the  argument  was  almost  entirely  confaied  to  the 
conclusive  nature  of  the  regulation. 

TiLGHMAN  C.  J.  delivered  the  opinion  of  the  court. 

The  only  question  now  to  be  decided  by  the  court  is,  whether 
the  regulation  of  the  lines  of  a  lot  in  the  Northern  Liberties  of 
the  city  of  PhiLuielphia^  made  by  virtue  of  the  act  entitled 
*'  An  act  for  appointing  regulators  in  the  southern  parts  of  the 
"  Northern  Liberties  of  the  city  of  Philadelphia^  and  for  other 
"  purposes  therein  mentioned,"  («)  is  conclusive  on  the  parties, 
not  only  as  to  that  part  of  the  lot  on  which  buildings  are  erected, 
but  throughout  the  whole  extent  of  it. 

The  act,  after  reciting  in  the  preamble,  t'nat  great  incon- 
venience had  ensued  for  want  of  surveyors  or  regulators  to 
lay  out  the  proper  gutters,  channels,  and  conduits  for  carrying 
off  the  waters,  "  and  to  set  out  the  lots  and  to  regulate  the  ivalls 
"  to  be  built  bcttvecn  partij  and  partii^''  goes  on  to  enact,  "  that 
"  the  regulators  shall  upon  application  made  to  them  have  full 
"  power  and  authority  to  regulate  and  lay  out  the  proper  gut- 
"  ters,  channels  and  conduits  for  the  carrying  off  the  waters 
"  within  the  limits  of  the  said  described  piece  of  land,  and  to 
"  enter  upon  the  lands  of  any  person  or  persons  in  order  to  set 
'■'■out  the  foundations^  and  to  regulate  the  walls  to  be  built 
"  between  party  and  party  as  to  the  breadth  and  thickness 
"  thereof,  which  foundations  shall  be  equally  laid  on  the  lands 
"  of  the  persons  between  whom  such  party  wall  is  to  be  made." 
&c.  &c. 

The  third  section  inflicts  a  penalty  on  persons  who  shall 
begin  to  lay  the  foundation  "  of  any  party  xvall^  or  any  wall 
^'■fronting  on  any  of  the  streets^^  before  the  same  is  viewed  and 
directed  by  the  regulators. 

The  fourth  section  gives  an  appeal  to  the  justices  of  the  next 
county  Court  of  Common  Pleas,  in  case  either  party,  between 
whom  such  foundation  or  party  wall  is  to  be  viade,  shall  con- 
Co)  9th  March  1771,  1  St.  La-Ks.  549. 


OF  PENNSYLVANIA.  357 

ceive  himself  aggrieved  by  any  order  or  direction  of  the  regu-      1808. 
lators;  and  the  justices  are  forthwith  to  summon  a  jury  and  Godshali 
proceed  to  determine  the  matter  in  dispute,  according  to  the         1,. 
course  of  the  common  law.  The  fifth  section  ascertains  the  fee  Mauiam. 
to  be  paid  to  the  regulators  for  their  trouble,  "  i/i  setting  out 
"  a?id  regulating  the  lines  of  each  lot.'''' 

These  are  the  only  parts  of  the  law  material  in  the  present 
question.  It  appears  then  that  although  tlie  preamble  speaks  of 
setting  out  the  lots^  yet  the  enacting  part  of  the  law  gives  no 
power  to  the  regulators  to  enter  on  any  man's  land  for  any  other 
purpose  than  that  of  regulating  the  foundations  znd  party  walls 
of  buildings;  consequently  they  have  no  power  to  enter  at  all 
for  the  bare  purpose  of  ascertaining  the  lines  of  a  lot,  nor  is 
there  any  appeal  given  but  in  case  of  a  building.  There  is  great 
reason  why  the  decision  of  the  regulators,  unappealed  from, 
should  be  conclusive  as  to  the  building;  because  if  it  were  not, 
the  walls  which  were  l)uilt  under  the  authority  of  officers, 
whom  the  party  was  obliged  to  employ,  might  be  afterwards 
pulled  down.  This  would  be  a  grievance  too  ruinous  to  be  sub- 
mitted to,  and  cannot  be  intended  to  be  the  meaning  of  the  law. 
Indeed  considerable  inconvenience  may  result  from  question- 
ing the  boundaries  in  any  part  of  the  lot,  after  a  house  has  been 
built.  And  if  it  was  in  the  power  of  the  court  to  make  or  alter 
the  law,  they  would  prevent  that  inconvenience  by  directing 
tliat  the  lines  fixed  by  the  regulators  should  be  conclusive.  But 
in  a  case  where  valuable  property  is  to  be  affected,  they  are  not 
authorized  to  draw  inferences  from  slight  expressions,  not  war- 
ranted by  the  principal  parts  of  the  law.  No  express  power  is 
given  to  fix  the  lines  of  the  lot,  when  there  is  no  party  wall. 
Hut  it  is  objected  that  a  fee  is  given  "/or  setting  out  and  regu - 
*'  lating  the  lines  of  each  lot.''''  The  answer  is,  that  this  cannot 
enlarge  the  power  given  before,  but  must  be  construed  b) 
reference  to  that  power;  that  is  to  say,  the  fee  is  given  for  set- 
ting out  and  regulating  the  lines^  so  far  as  is  necessary  for  the 
jjurpose  of  regulating  the  front  and  parti/  walls;  and  it  is  evi- 
dent that  part  or  the  whole  of  t7uo  lines  at  least,  must  be  set  out 
and  regulated  in  order  to  do  this.  This  construction  renders 
the  whole  law  consistent,  without  doing  violence  to  any  part  of 
it.  I  am  therefore  of  opinion  that  the  parties  are  not  concluded 
by  the  regulation  made  in  that  p:irt  of  the  lot,  which  lies  back 
of  the  holise.  There  must  of  course  be  a  new  trial,  because  the 


358  CASES  IN  THE  SUPREME  COURT 

1 808.      court  suppose  that  the  jury  found  their  verdict  under  an  opinion 

(loDSHALi,  ^^^^  *^^  ^^'  °^  ^^^^  regulators  was  conclusive.  Tiie  weight  of 

T'.         the  evidence  was  against  the  reguhition.  On  the  second  trial, 

iNlARiAM    the  parties  knowing  precisely  on  what  pouit  the  cause  will  turn, 

will  come  better  pr.pared  to  contest  the  real  merits,  that  is,  the 

true  location  of  Coatcs\'i  street ;  for  that  will  be  the  only  matter 

in  dispute. 

New  Trial  granted. 


We.lr.esdav,     JaCObYoHE     aguhlSt    WiLLIAM    and   JoHN    BaRNET,^ 

"^i"''^^'^-  administrators  of  Henry  Barnet. 

A.  obtains     "TPHIS  was  an  appeal  from  the  Circuit  Court  of  Northamp  & 
jiiclffmcnt  for    J-     totl  COUnty. 

against  B.  'Jacob  Tolie  the  appellant  married  a  daughter  of  Henry  Bar- 

liis  son-in-  ;j^^^  and  became  indebted  to  his  father-in-law  in  a  considerable 
then  dies  in-  sum,  for  which  he  gave  his  bond  with  warrant  of  attorney, 
testate  seis-  Judgment  was  entered  against  Tohe^  and  executions  issued 
estate,  and  against  his  property  both  in  the  life  time  of  Barnet  and  after 
JeavipR'  seve-j^is  death,  but  without  effect;  the  principal  part  of  the  judgment 
amongwliom  remained  unsatisfied,  and  Tohe  was  insolvent.  Nenri/ Barnet d\ed 
isthewife  ofjjjjgg^jj,.^,    whereupon  an  inquest  of  partition  was  awarded  by 

B.  The  real  ,  ^  ,  ,  ^  '  ,,•  ,  .  •  i  i  r 
estate  is  di-  the  Orphan  s  Court;  and  his  real  estate,  not  being  susceptible  ot 

vided  by  in-  ^  division  into  as  many  parts  as  there  were  claimants,  was  ap- 
fe\ver  parts  praised  by  the  inquest  and  ordered  by  the  court  to  certain  of 

tlian  tlifc  ti^j.  children  and  grandchildren  upon  the  terms  prescribed  by 
are  children,  .  ,     r       .    .  .  .       . 

uhich  are  al-law,  viz.  upon  their  givmg  good  security,  which  in  practice  is  a 

lotted  ac-  bond  and  recognisance,  to  pay  to  the  other  children  their  equal 
cordniplv,  o  '        i    ^  i 

wndeith'cdi-and  proportionable  part  of  the  appraised  value  of  the  estate. 

i-eciionof  ]vf^  part  of  the  i-eal  estate  was  ordered  to  Tohe  and  his  wife, 
tlie  law  that      .... 

a  bond  shall  who  was  Still  living,  but  he  was  entitled  in  right  of  his  wife  to 
be  {,'iven  hy  ^^^  ftf^h  part  of  the  valuation. 

those  who  ' 

take  the  land 

to  the  other  children,  B.'s  wife  among- the  number,  for  their  resperlive  purparts.  B.  is 

insolvent,  and  his  debt  to  A.  unpaid.    The  Orplian's  Court  may  order   B.'s   debt  to   be 

deducted  from  the  amoimt  of  the  bond  for  his  wife's  part,  and  if  necessary  to  ascertain 

the  amount,  may  direct  an  issue. 

The  bond  directed  to  be  piven  for  the  purpart  of  the  valuation  of  real  estate  is  persona! 
property,  and  attended  by  all  its  incidents. 

The  Courts  of  Pennsylvania  have  no  authority  to  insist  on  a  provision  for  the  wife,  when 
the  husband  applies  for  her  personal  properly. 


OF  PENNSYLVANIA.  359 

The  appellees  who  were  sons  of  Henry  Barnet^  and  to  each  of      \  gos. 
whom  a  part  of  the  real  estate  was  ordered,  petitioned  the  Or-      Tr 
phan's  Court  that  the  money,  which  by  virtue  of  the  inquest         x,, 
and  voluation  accrued  to  7'ohe  in  right  of  his  wife,  might  be   Barnet. 
made  payable  to  them  as  administrators  in  satisfaction  of  Toilers 
debt;  or  that  it  might  be  secured  in  some  other  way  for  the 
ben(  fit  oi  Barnet's  estate.  The  Orphan's  Court  decreed  against 
the  petition;  and  the  Circuit  Court  upon  appeal  reversed  the 
decree,  and  ordered  the  distributive  share  of  Tohe  in  right  of 
his  wife  to  be  deducted  from  the  sum  due  on  the  judgment,  and 
that  giving  him  credit  therefor  should  be  deemed  a  full  pay- 
ment to  him  in  right  of  his  wife. 

From  this  judgment  I'ohe  appealed  to  this  court;  and  the 
cause  was  now  argued  by  Hopkinson  for  the  appellant,  and  S'lt- 
greaves  for  the  appellees. 

For  the  appellant,  two  principal  exceptions  were  urged 
against  the  judgment  of  the  Circuit  Court;  1.  That  the  Orphan's 
Court  had  no  jurisdiction  over  the  matter  of  the  petition;  and 
2.  That  it  was  against  equity  to  deduct  the  husband's  debt 
from  his  wife's  share  of  her  father's  real  estate.  There  were  * 

other  exceptions  incidentally  noticed  in  the  discussion. 

1.  The  Orphan's  Court  has  a  limited  jurisdiction,  and  is  not 
left  to  the  exercise  of  any  discretion  in  the  distribution  of  an 
intestate's  estate.  Nothing  can  be  more  explicit  than  the  provi- 
sions of  the  law  upon  this  kind  of  partition;  for  the  only  parti- 
cular in  which  any  thing  like  a  discretion  is  left  to  the  Orphan's 
Court,  is  in  limiting  the  time,  not  to  exceed  twelve  months, 
within  which  the  securities  for  the  purpart  of  the  valuation  shall 
be  made  payable.  In  what  manner  can  it  try  tiie  questions  which 
may  arise  out  of  this  application?  Suppose  the  debt  is  denied 
or  payment  is  averred  ;  where  has  it  the  power  to  summon  a 
jur)'  or  to  direct  an  issue  ?  How  can  it  hold  plea  of  sct-ofli'  The 
creditors  of  Tohc  are  as  much  interested  as  the  representatives 
iA  Barnet ;\\o\s  are  they  to  be  brought  in  and  concluded  b\ 
the  decree?  It  is  no  answer  to  say  they  arc  not  interested;  for 
that  is  the  very  question.  But  the  matter  was  no  longer  before 
the  Orphan's  Court  at  the  time  of  this  petition.  The  partition 
and  appraisement  were  made,  and  the  order  of  the  court  com- 
pleted, nothing  remained  but  to  give  the  bonds  in  the  m.inner 


360  CASES  IN  THE  SUPREME  COURT 

1808.      required  by  law;  the  court  was  then  functus  officio  as  it  respect- 
YQ„g      ed  ^f//v?f/'i' real  estate.  The  petition  therefore  asks  the  court 
11.  for  a  review  of  its  own  judgment,  which  it  cannot  grant.  Sup- 

Bahnet.  pose  the  real  estate  to  have  been  divided  into  as  many  parts  as 
claimants,  how  would  the  petitioners  have  arrested  the  allot- 
ment to  Yohe^s  wife?  And  can  the  circumstance  of  turning 
land  into  money  alter  the  rights  of  tlie  parties?  Personal  pro- 
perty is  paid  into  court  for  distribution,  and  a  control  over  it 
may  perhaps  be  exercisedj  but  realty  and  the  bonds  which  are 
given  in  lieu  of  realty  are  subject  to  no  control  but  that  which 
is  expressed  in  the  law.  Courts  of  general  jurisdiction  do  some- 
limes  contrary  to  their  regular  practice  expose  a  fund  in  their 
possession  to  the  claim  of  a  creditor  who  cannot  reach  it  by  or- 
dinary process,  as  in  Horn  v.  Horn;  {a)  but  they  will  not  bring 
a  fund  within  their  control  for  the  purpose  of  doing  this. 

But  what  have  the  administrators  of  Barnet  to  do  with  the 
real  estate  ?  They  respresent  a  debt  due  to  the  intestate,  and 
they  pray  that  the  real  estate  or  its  representative  the  bond  may 
not  go  out  of  their  hands  until  the  debt  is  paid.  The  real  es- 
tate never  was  in  their  hands;  it  is  a  distinct  fund;  and  any  cre- 
ditor of  Jacob  Tohe  may  as  well  make  the  petition  as  they. 
Their  being  heirs  at  the  same  time  does  not  alter  the  case;  for 
as  such  they  have  no  claim  upon  Tohe  for  any  thing. 

2.  The  purpart  is  the  property  of  Yoke's  wife;  as  land  no 
doubt  it  would  go  to  her;  and  the  bond  is  the  same  as  the  land. 
The  court  must  consider  it  as  given  in  the  wife's  name;  for  in 
strictness  it  should  be  so.  If  he  dies  before  it  is  converted,  it  is 
still  hers;  if  he  must  applj-  to  the  court  for  it,  he  must  apply  for 
it  as  hers;  and  then  two  questions  arise:  first,  will  the  court  in- 
terfere in  this  summary  way  to  settle  an  account  between  Yoke 
and  the  estate  of  Barnet^  where  the  rights  of  a  third  person  in- 
tervene? and  secondly,  will  they  allow  the  wife's  property  to  be 
taken  out  of  their  hands  upon  an  appeal  to  their  equitable  juris- 
diction, to  pay  the  husband's  debt  ?  To  the  first  question  the  case 
of  Doe  V.  Darnton  {b)  is  a  direct  answer  in  the  negative.  As  to 
the  second,  married  women  are  peculiarly  under  the  protection 
of  courts.  If  the  husband  cannot  get  at  the  wife's  property  but 
through  a  Court  of  Equity,  it  will  never  give  it  to  him  but  upon 
a  settlement;  a  fortiori  will  it  not  expose  it  to  the  payment  of 
his  debts.  It  is  a  principle  of  equity,  by  which  our  courts  are 

'     (a)  Ambl.  79.  (b)  3  East  149.      • 


OF  PENNSYLVANIA.  361 

governed  as  well  as  a  Court  of  Chancery.  The  wife  at  all  events      ISOS. 
has  a  chance,  of  which  she  should  not  be  deprived.  Yghe 

V. 

For  the  appellees,  it  was  contended  that  the  Orphan's  Court  Baunet. 
in  its  modes  of  process,  of  trial,  and  of  enforcing  its  decrees,  is 
a  Court  of  Equity,  and  by  the  act  of  1713  has  an  express  grant 
of  power,  in  the  last  respect,  coextensive  with  that  of  "■any 
"  Court  of  Equity."  1  St.  Laws  98.  But  the  power  in  question  is 
Incident  to  all  courts,  who  must  have  a  right  so  to  modify 
their  decrees  and  judgments  as  to  prevent  the  perpetration  of 
fraud;  it  is  peculiarly  so  to  Courts  that  proceed  upon  equity 
principles,  as  all  the  courts  \n  Pennst/Ivania  do.  The  power  to 
tr\-  facts  either  by  affidavits,  or  by  directing  an  issue,  appertains 
to  the  Orphan's  Court  as  an  instrument  in  the  exercise  of  their 
express  authority.  Facts  may  be  disputed  upon  an  application  to 
distribute  mere  personal  assets.  Persons  may  be  called  before 
the  court  cither  as  parties  or  witnesses,  and  punished  for  their 
default,  or  concluded  by  its  decree.  Every  thing  that  relates  to 
the  partition  of  real  estate  by  an  inquest  under  the  act  of  1794, 
is  completely  within  the  power  of  the  court.  The  equity  of 
ihe  partition,  the  rights  of  the  parties,  the  nature  of  the  securi- 
ty, and  the  limitation  of  the  time  of  payment  not  to  exceed 
twelve  months,  are  all  matters  for  the  discretion  of  the  court; 
the  question  then  is,  has  it  in  this  case  exercised  a  legal  discre- 
tion.' The  administrators  here  are  likewise  heirs,  and  therefore 
they  would  be  competent  to  litigate  a  dispute  concerning  mere 
real  estate;  but  real  estate  is  out  of  the  question;  by  the  law  it 
has  been  converted  into  personal  property.  If  the  bond  is  given, 
he  will  sue  them  in  their  individual  capacity,  and  of  course 
they  cannot  set  off  the  dei>t  which  belongs  to  them  as  adminis- 
trators; the  only  point  is,  should  the  court  arrest  tlie  bond,  or 
order  it  to  be  so  drawn  as  to  compel  To/w  to  do  justice?  If  the 
money  had  been  an  advancement  to  2~o/ic\s'  wife,  it  must  have 
been  brought  into  hotchpot,  and  his  purpart  Ijy  so  much  dimi- 
nished. Is  lie  to  be  favoured  in  equity  because  it  was  a  loan? 
If /?«r;ir/'.v  estate  had  Ijcen  altogether  personal,  the  administra- 
tors might  have  retained  for  the  debt.  Are  they  to  Ije  worse 
off  because  part  is  real  estate,  and  yet  iVu'i' interest  in  that 
estate  has  become  personal  ])roperty  ?  Me  can  come  at  his  right 
only  by  an  order  of  the  Orphan's  Court,  and  then  by  all  the 

rules  of  cquitv  thcv  mav  and  ought  to  impose  terms  on  him 
Vol..  I.      '        ■        '  2  Z 


302  CASES  IN  THE  SUPREME  COUKT 

1808.      ii'^  ^^l^'fJt  is  to  the  same  estate  upon  which  he  makes  liis  claim; 

T.  a  technical  rule  of  law  which  clisiinp-uishes  real  from  personal 

T,  estate  is  all  that  prevents  us  from  doing  ourselves  justice;  is 
U.VRNET.  this  to  be  adhered  to  in  aid  of  a  fraud  i"  The  Orphan's  Court 
itself  has  often  dexfiated  from  the  letter,  to  do  justice;  it  has  or- 
dered the  bond  to  be  given  to  the  heir  of  the  assignee.  If  a 
plaintiff  cannot  And  effects  of  the  defendant  to  satisfy  his  judg- 
ment, a  court  of  common  law  will  order  the  sheriff  to  pay  over 
monev  which  he  has  levied  in  another  case  at  defendant's  suit. 
Arnusteadx.  Pliilpot.  (a)  There  is  no  other  way  of  getting  at  it, 
which  is  our  difficulty,  for  it  cannot  be  taken  in  execution. 
Turner  v.  Fendall.  (^)  So  under  the  general  jurisdiction  of  the 
court,  they  will  allow  A  to  set  off  a  judgment  against  B  and  C, 
against  a  judgment  by  B  alone.  Mitchell  \.  Oldfield(c)  The  case 
is  not  within  the  statute,  but  it  is  an  equitable  interposition  to 
prevent  injustice.  Gurish  v.  Doncroan.  (li)  So  where  an  insol- 
vent debtor  has  effects  which  cannot  be  reached,  equity  will  ex- 
pose them  to  the  demand  of  a  creditor  after  he  has  exhausted 
his  remedies  at  law.  Edgdl  v.  Haywood  (e),  Balch  v.  Was- 
lali  (y),  Smithicr  v.  Lervia  {g).  In  these  cases  the  funds  were 
not  in  possession  of  the  court;  on  the  contrary  Edgell  v.  Hay- 
ivood  was  the  case  of  a  legacy  in  the  hands  of  an  executor  whom 
the  court  ordered  to  pay  the  plaintiff's  debt.  But  in  our  case 
the  funds  were  still  under  the  control  of  the  court,  for  until  the 
bonds  are  given  tlie  matter  is  undetermined. 

Then  as  to  the  wife's  interest.  This  bond  is  to  no  intent 
or  purpose  real  estate;  if  it  were,  it  should  be  given  to  the 
husband  for  life;  and  he,  like  all  other  tenants  for  life  of  money, 
should  give  security.  It  is  personal  property;  and  there  is  no 
instance  known  in  our  practice  of  a  court's  demanding  a  provi- 
sion for  the  Avife  as  the  condition  upon  which  they  will  assist 
the  husband  to  her  money.  It  is  a  rule  in  Chancery,  but  unfor- 
tunately without  precedent  among  us.  The  bond  is  the  hus- 
band's; it  is  given  to  him  in  right  of  his  wife;  he  may  assign  it 
in  payment  of  his  debts;  he  may  sell  it  and  squander  the  money; 
the  merest  act  will  amount  to  a  conversion;  and  if  she  dies  be- 


{ n)  Douf^.  2i9.  (e)5Ati.352. 

(//)  1  Cr'anch.  13G.  (/)  1  P.  Wins.  445. 

(c)  AD.iSf  E.  123.  ig)  1  Vern.  SI'S, 
(f/)  2  Atr-  IQ5. 


OF  PENNSYLVANIA.  36C 

lore  him,  he  will  take  it  whether  it  he  in  her  name  or  his  own,      1808. 
as  administrator.   His  title  to  all  her  personal  estate  is  exclusive.      Yohe 
His  right  to  admin ibtration  depends  upon  and  follows  his  right         v. 
of  property.   And  it  is  then  merely  a  possibility  that  the  wife   Barnet, 
mav  survive,  that  is  to  defeat  the  equity  of  the  appellees;  it  is 
still  less,  it  is  a  possibility  that  the  husband  shall  die  living  the 
wife,  before  the  bond  is  paid;  for  the  heir  may  choose  to  pay  it 
any  time  after  it  is  due.   But  finally  there  is  no  equity  in  the. 
wife's  claim.  She  has  already  received  the  benefit  of  her  pur- 
part in  the  loan  to  her  husband.  It  has  proceeded  from  the  same 
fund  upon  which  she  must  make  her  claim;  it  has  diminished  it 
to  a  greater  amount  than  her  claim;  and  it  is  against  equity  that 
even  for  the  wife  herself  the  claim  should  be  enforced. 

TiLGHMAN  C.  J.  This  case  comes  before  the  court  on  an  ap- 
peal from  the  Circuit  Court  of  Northampton  county,  who  re- 
versed the  judgment  of  the  Orphan's  Court  of  the  same  count)-. 

Jacob  Tohe  married  one  of  the  daughters  of  Henr.j  Barnet 
deceased;  and  his  wife  is  living.  He  became  indebted  to  the  said 
Henri/  Barnet  by  bond,  which  was  put  in  suit,  and  judgment 
obtained  on  it  by  the  said  Henry  in  his  life.  Part  of  this  judg- 
ment has  been  paid;  but  a  considerable  bulance  remains  due, 
and  Jacob  Tohe  is  insolvent.  After  the  death  of  the  said  Hcnrij 
Barnet^  his  land  not  being  capable  of  a  division  among  all  his 
children  without  injury,  was  ijy  order  of  the  Orphan's  Court 
assigned  to  particular  children,  who  were  to  pay  to  the  other 
heirs  the  amount  of  their  share  of  the  valuation  of  the  land  iu 
mone\-.  The  share  of  the  wife  o{  Jacob  Tohe  was  one  fifth  part 
of  the  valuation,  which  was  to  be  secured  by  a  bond  to  be  given 
to  the  said  Jacob  ToJie  in  right  of  his  wife.  The  other  heirs  of 
Hcnrij  Barnet  petitioned  liie  Orphan's  Court  for  an  order  to 
deduct  the  lialance  due  on  the  judgment  against  Jacob  I'ohc^ 
from  his  wife's  share  of  tlie  real  estate  which  was  to  be  secured 
by  bond  as  aforesaid.  The  Orphan's  Court  adjudged  that  the 
prayer  of  the  petition  could  not  be  granted;  and  the  Circuit 
Court  decided  on  an  appeal  that  the  petition  should  be  granted. 
Many  exceptions  were  taken  to  the  judgntent  o(  the  Circuii 
Court,  but  on  the  argument  they  were  reduced  to  two. 

1.  That  the  Orplian's  Court  had  no  invi'dictinn  to  art  on 
the  matter  of  the  p(  tition. 


JC,4  CASKS  IN  THE  SUPHb.iVIK  COURT 

1808.  -•  That  it  was  unjust  to  deduct  the  husband's  debt  from  the 

x^',,'       wife's  share  of  her  father's  real  estate. 
I.  1.   In  supporting  the  first  point  it  was  urged,  that  the  Or- 

Barnet.  phan's  Court  liad  no  authority  but  what  they  derived  from  the 
act  of  Assembly  directing  them  to  make  partition  of  the  intes- 
tate's estate;  and  that  in  case  of  a  dispute  they  have  no  mode  of 
ascertaining  the  amount  of  a  debt.  But  there  are  cases  in  which 
the  Orphan's  Court  must  take  upon  themselves  to  decide  facts 
incidental  to  the  partition  of  an  estate.  For  instance,  if  a  dispute 
should  arise  concerning  the  amount  of  an  advancement  made 
by  the  intestate  in  his  life  to  one  of  his  children,  partition  cannot 
be  completed  till  this  amount  be  ascertained.  If  necessary,  facts 
mav  be  ascertained  by  a  jury;  so  that  there  seems  to  be  no  dif- 
ficultv  in  surmounting  this  part  of  the  objection.  If  instead  of 
a  debt  due  from  7~ohe  to  his  father-in-law,  he  had  received  from 
his  father-in-law  an  advance  of  money  in  part  of  his  wife's  share 
of  the  estate,  there  is  no  doubt  but  the  Orphan's  Court  could 
and  must  have  deducted  the  amount  of  the  advance.  The  case 
of  a  debt,  to  be  sure,  is  not  quite  the  same;  although  in  fact  this 
debt  has  drawn  as  much  from  the  estate  of  Hoirij  Barnct  into 
the  hands  of  his  son-in-law,  as  if  it  had  been  an  actual  advance. 
But  inasmuch  as  Tohe  cannot  come  at  his  wife's  share  without 
the  aid  of  the  Orphan's  Court,  I  see  no  reason  why  that  court 
may  not  deduct  what  appears  to  be  due  from  him  to  the  other 
heirs,  in  a  case  like  the  present,  where  if  he  once  gets  hold  of 
the  money  or  the  bond,  there  is  reason  to  fear  that  payment 
of  his  debt  will  never  be  obtained.  I  speak  now,  taking  it  for 
granted  that  Tohe  is  entitled  to  receive  the  amountof  his  wife's 
share,  which  is  the  second  point  for  consideration. 

2.  The  Ori)han's  Court  have  ordered  that  a  bond  should  be 
given  to  Tohe  in  right  of  his  wife  for  the  amount  of  her  share. 
It  is  said,  and  not  Avithout  great  plausibility,  on  the  part  of  the 
appellant,  that  this  bond  being  given  in  lieu  of  land,  ought  to  be 
considered  as  the  property  of  the  wife;  that  if  the  bond  was 
passed  immediately  to  her,  and  she  should  survive  her  husband, 
it  would  be  her  absolute  property,  and  that  it  is  hard  to  deprive 
her  of  this  chance.  There  certainly  may  be  hardships  in  cases 
of  the  kind,  which  probably  the  legislature  were  not  aware  of, 
when  they  directed  the  mode  of  partition.  But  we  must  take 
the  law  as  we  find  it  written.  There  is  no  ground  for  saying 


OF  PENNSYLVANIA.  35-5 

that  the  share,  thus  directed  to  be  paid  in  money,  remains  for      1808. 
anv  intent  or  purpose,  of  the  nature  of  real  estate.  It  is  convert-     Yohe 
cd  completely  into  personal  property.  The  bond  would  be  alto-         v. 
gether  in  the  power  of  the  husband.  He  might  release  it,  as-    Baunet. 
sign  it,  or  dispose  of  it  in  any  way  he  thought  proper.  It  is  to 
be  regretted  that  the  courts  in  this  state  arc  not  vested  with  the 
power  exercised  by  the  Court  of  Chancery  in  Engla7id^  of  in- 
sisting on  some  provision  for  the  wife,  Avhen  the  husband  ap- 
plies to  them  for  the  purpose  of  getting  possession  of  her  per- 
sonal property.  But  we  have  no  trace  of  any  such  exercise  of 
power  by  our  courts.  It  must  be  taken  for  granted  then,  that 
they  possess  no  such  power.  That  being  the  case,  Jacob  Tohe 
appears  to  be  substantially  the  owner  of  his  wife's  share.   If 
it  was  payable  in  cash  he  would  have  a  right  to  demand  it; 
and  being  in  fact  no  more  than  money  to  be  secured  by  bond 
payable  in  a  time  to  be  fixed  by  the  Orphan's  Court  not  ex. 
ceeding  twelve  months  from  the  partition,  I  am  constrained 
to  consider  it  as  his  property. 

I  am  therefore  of  opinion  that  the  equity  of  this  case  de- 
mands that  the  balance  due  on  the  judgment  against  Jacob 
Yohe  should  be  deducted  from  his  wife's  share,  and  that 
the  judgment  of  the  Circuit  Court  be  affirmed. 

Brackenridge  J.  concurred. 

Yeates  J.  and  Smith  J.  gave  no  opinion,  as  the  appeal  was 
from  their  decision. 

Judgment  affirmeti. 


366  CASES  IN  THE  SUPREME  COURT 

1808. 


jrednftday,  B E N  N E R  aiicl  aiiothcr,  administrators  of  O b e ii l  a n  jde k , 
^P"-'!  6ti..  .  jifml 

aP'(ll?lst  r  REY.  2waH 

^  /'IS  mj 

A  liabeas      'TPHIS  action  was  originally  brought  in  the  Common  Pleas 

corpus  for       X    of  Daiifilun  count}',  and  was  removed  at  March  term 

of  a  cause      '^797  to  the  Supreme  Court,  by  a  habeas  corpus  at  the  instance 

from  the       of  the  defendant.  It  was  there  put  at  issue,  and  after  December 

Conininn  r  i      •  i     i  i  r  i 

Pleas  to  the  term  1 TQO,  was  transierred  with  the  other  causes  irom  the  same 

Supreme  countv  to  the  Circuit  Court  for  Dauphin.  It  was  tried  in  Daw- 
be  amended  /'/i"i  in  October  1803,  before  Chief  Justice  Shippen  and  Judge 
by  the  prx-   Brackenridge,  and  a  verdict  was  found  for  the  plaintiff.  A 

cipe;  and  .  ,  ,     .  r  •     i  i  •    i 

mav,  after  motion  was  then  made  in  arrest  ot  judgment,  which  was  over- 
verdict,  be  ruled  by  the  court;  and  from  this  decision  the  defendant  ap- 
the  Common  pealed.  The  plaintiff  also  moved  for  leave  to  amend  the  habeas 
Pleas  for  the  cv^rpus  and  return;  and  to  this  motion  an  advisare  was  entered, 
having-  tlie    with  an  agreement  that  it  should  be  argued  in  bank.  The  ques- 

return  ^j^j^  however  in  both  shapes  was  the  same;  the  reasons  in  arrest 

amended  by  . 

that  court,     being  that  there  were  no  parties  and  no  cause  beiore  the  court, 

and  the  amendment  having  in  view  the  cure  of  these  defects. 

The  fact  was  that  the  defendant's  attorney  gave  a  regular  yvrar- 

cipe  for  the  habeas  corpus;  but  although  the  writ  was  allowed 

by  a  judge  of  the  Supreme  Court,  sealed  and  signed  by  the 

nrothonotarv,  and  indorsed  with  the  names  of  the  parties,  it 

was  entirely  blank  on  the  face  of  it  in  all  but  the  printed  parts. 

The  record  of  the  Common  Pleas,  moreover,  which  came  up 

with  the  writ,  was  signed  by  the  clerk  and  sealed  with  the  seal 

of  the  court,  but  the  return  to  the  writ  M^as  signed  by  only  one 

associate  Judge.  The  reasons  in  arrest  were  therefore,  1st,  that 

the  cause  had  never  been  removed  from  the  Common  Pleas, 

there  being  no  valid  return  to  the  writ;  and  2d,  that  the  process 

did  not  shew  any  parties  or  cause  of  action  to  the  Circuit  Court. 

The  answer  was  that  the  defects  might  be  amended. 

Ilophins  and  Dallas  argued  for  the  plaintiffs. 

1.  As  to  the  writ.  The  error  which  requires  amendment  is 
A  mere  misprision  of  the  clerk;  and  there  is  a  regular  priei  ipe 
by  which  it  may  be  amended.  There  has  been  too  a  fair  trial 
and  a  verdict;  and  the  justice  of  the  case  is  with  the  amend-   - 
ment.  Now  no  instance  can  be  shewn  in  which  an  amendment 


OF  PENNSYLVANIA.  367 

has  been  refused,  where  the  defect  was  a  clerical  error,  where      1808. 
there  has  been  something  to  amend  by,  and  where  the  justice  of   b^^ner 
the  case  has  coincided  with  the  motion.  The  King\.  Ellames  (a),         v. 
MossmaJi  v.  Higgvison  (^),  Course  v.  Stead  (c).  Black  v.  Wis-     Fuey. 
tar  fd).    Here  it  is  the  defendant's  own  writ;  and  that  alone 
should  prevent  his  benefiting   by  its    imperfection.    I^ex  v. 
Hayes,  (e)  The  court  after  verdict  will  if  necessary  even  pre- 
sume that  a  good  writ  once  existed,  but  is  lost,  and  that  the 
cause  was  not  removed  by  this  writ.  More  v.  Hodges,  (^f) 

2.  As  to  the  return.  The  law  does  not  point  out  any  particu- 
lar mode  of  authenticating  a  return  to  a  habeas  corpus.  The 
record  of  the  Common  Pleas  is  sent  up  under  the  seal  of  the 
court,  and  it  expressly  states  that  the  cause  is  removed  by  ha- 
beas corpus.  This  is  a  sufficient  return;  at  all  events  it  is  suffi- 
cient to  amend  the  return  by.  If  we  should  go  back  to  the  Com- 
mon Pleas,  the  docket  would  shew  that  the  cause  had  been  re- 
moved; for  we  have  a  verification  of  the  docket  entries  with  the 
writ;  if  we  cannot  amend  the  return,  the  cause  then  is  not  in 
existence.  But  tlic  proceedings  of  the  parties  in  the  Supreme 
Court  amounted  to  a  removal  of  the  suit  by  consent,  and  there- 
fore both  writ  and  return  are  immaterial.  Suits  were  frequent- 
ly removed  without  process  prior  to  the  act  of  24th  February 
1806. 

Jngersoll  argued  for  the  defendant. 

1.  As  to  the  return.  The  writ  is  directed  to  the  judges  of  the 
court  below;  and  no  one  but  the  court  can  make  a  return  to  it. 
The  only  question  then  is,  whether  one  judge  constituted  the 
court;  and  there  is  no  question,  he  did  not;  it  would  be  idle  to 
read  the  law.  But  it  is  said  the  record  shews  the  cause  to  have 
been  removed,  and  the  return  may  be  amended  by  it.  The 
docket  entries  are  made  by  the  clerk  and  not  by  the  court.  The 
seal  is  evidence  that  the  entries  are  tliere,  but  not  that  the 
court  put  them  there.  The  argument  sul)stitutcs  the  clerk  for 
the  court.  If  the  record  were  sufiitient,  then  even  the  return  by 
one  judge  would  be  useless.   Indeed  the  return  by  one  judge 

(aj  Cat.  Temp.  Hard\K.  Zl .  (</)  4  Dall.  267. 

(A)  4  Dall.  12.  (0  2  Stra.  84.3.  8  Co.  59.  b. 

(. •^  4  Dall.  22  (  /)  (?;•<,.  Car.  90 


368  CASES  IN  THK  SUPREME  COURT 

1808.      furnishes  a  presumption  that  the  other  two  were  against  him; 
~Bexneu    ^"^^  it  the  phiintifl's  reasoning  holds,  the  clerk  may  be  against 
x;.         them  all,  and  yet  his  return  shall  prevail.  The  cause  in  fact  is 
Frey.      still  in  the  Common  Picas  o{  Dauphin  county;  and  our  justifi- 
cation in  taking  the  exception  is,  that  had  the  verdict  been  for 
us,  we  could  not  have  had  the  benefit  of  it. 

2.  As  to  the  writ.  The  habeas  corpus  to  remove  a  suit  is  an 
original  writ,  and  not  within  the  statutes  of  amendment.  Mas- 
ters V.  Ruck  (rt),  Christie  v.  Hvggins  (J)).  The  cases  cited  do 
not  come  up  to  this.  This  writ,  from  being  blank  on  the  face  of 
it,  is  in  fact  directed  to  no  court  at  all;  and  then  what  authority- 
had  the  Common  Picas  of  Dauphin  to  make  a  return?  Frank- 
IhCs  case  is  in  point.  An  indictment  was  found  before  the 
!^iartcr  Sessions.  The  precipe  for  the  removal  of  the  indict- 
ment was  written  by  the  counsel  for  the  defendant;  the  writ 
was  worded  according  to  the  precipe,  and  issued  at  the  instance 
of  the  defendant;  and  it  was  directed  to  the  Judges  of  the  Com- 
mon Pleas  to  remove  an  indictment  pending  before  them.  They 
returned  it;  and  although  they  were  Judges  of  the  Quarter 
Sessions  because  they  were  Judges  of  the  Common  Pleas,  the 
defect  was  held  to  be  incurable.  Commonxvealth  v.  Franklin,  (c) 
A  wrong  direction  cannot  be  worse  than  none;  and  there  is  no 
difference  from  the  decision  being  in  a  criminal  case;  for 
amendments  at  common  law  are  always  allowed  in  criminal 
cases,  and  no  other  can  be  made  to  a  habeas  corpus  of  this  kind. 
It  is  vain  to  talk  of  consent  waiving  process,  when  the  process 
was  actually  demanded  by  the  defendant,  though  he  is  in  no 
manner  accountable  for  its  defects;  for  in  the  Ki7ig  v.  Haijes^ 
cited  from  Strange^  the  very  defect  in  question  was  made  by 
the  defendant's  own  clerk  in  court,  in  making  up  the  Nisi  Pri^ 
Its  record. 

TiLGHMAN  C.  J.  delivered  the  opinion  of  the  court. 

This  action  was  brought  in  the  Court  of  Common  Pleas  of 
Dauphin  county,  and  removed  by  the  defendant  by  writ  of  ha- 
beas corpus  to  the  Supreme  Court.  It  was  there  brought  to 
issue,  and  from  thence  transferred  to   the  Circuit  Court  of 


(a)  Barnes  \2.  (c)  4,  Dall.^55. 

[h)  Barnes  l3. 


OF  PENNSYLVANIA.  369 

Dauphin,  where  it  was  tried,  and  a  verdict  found  for  the  phiin-      1808. 
tiff.  The  defendant  after  all  this,  moves  in  arrest  of  iudo;ment,   t,^^  , '„ 
because  the  suit  was  not  legally  removed  to  the  Supreme  Court.         -u. 
He  alleges  two  reasons  against  the  removal.  Frey. 

1st.  That  the  habeas  corpus  was  left  blank  in  many  substan- 
tial places. 

2d.  That  the  return  to  the  habeas  corpus  is  signed  but  by  one 
of  the  associate  Judges  of  the  Court  of  Common  Pleas. 

1.  As  to  the  first  point,  the  fact  is  that  a  regular  pnecipe  was 
given  by  the  attorney  for  the  defendant,  for  issuing  the  habeas 
corpus^  but  by  inadvertency  of  the  clerk,  the  writ,  although  al- 
lowed by  a  Judge  of  the  Supreme  Court  and  sealed  with  the 
seal  of  the  Supreme  Court,  was  left  blank  in  material  places.  If 
there  had  been  no  praecipe,  there  would  have  been  nothing  to 
amend  by;  but  as  amendments  have  frequently  been  made  by 
the  praecipe,  I  think  there  can  be  no  case  more  proper  to  allow 
it  than  the  present.  I  am  therefore  of  opinion  that  this  writ  may 
be  amended  bv  the  prsecipe. 

2.  The  return  by  one  associate  judge  is  not  good,  because  one 
judge  cannot  hold  a  court.  But  I  observe  it  is  said  in  the  re- 
cord, which  is  certified  by  the  prothonotary  under  the  seal  of 
the  court,  that  the  suit  was  removed  by  habeas  corpus.  This  af- 
fords reason  for  supposing  that  the  court  did  in  fact  order  the 
record  to  be  returned  in  obedience  to  the  habeas  corpus;  and  it 
may  be  that  it  is  only  owing  to  the  error  of  the  prothonotary, that 
the  record  was  sent  up  without  a  proper  certificate.  On  the  ar- 
gument of  this  cause  I  feared  there  would  be  great  difficulty  in 
getting  at  the  justice  of  the  casej  but  upon  reflection  I  am  of 
opinion  that  the  Circuit  Court  may  send  back  the  record  to  the 
Common  Pleas,  with  permission  to  the  Judges  of  that  court  to 
amend  the  return  if  they  think  proper.  In  the  case  of  the  King 
against  The  Mayor  and  Burgesses  oJGrampond^  7  D.i^  ii.  699, 
a  motion  was  made  for  leave  to  amend  the  return  to  a  writ  of 
mandamus  after  verdict.  The  Court  of  King's  Bench  refused 
to  give  leave  to  amend,  because  they  did  not  think  it  proper  un- 
der the  |)articular  circumstances  of  that  case;  but  tluy  had  no 
doubt  of  their  power,  not  under  the  statutes  of  Jeofails^  l)Ut  un- 
der the  general  authority  of  the  court.  It  was  there  said  that 
these  amendments  were  reducible  to  no  certain  rule,  but  that 
each  particular  case  must  be  left  to  the  sound  discretion  of  the 
rourt;  and  that  the  best  principle  seemed  to  be,  that  an  amend- 

Voi..  I.  3  A 


370  CASKS  IN  THE  SUPREME  COURT 

1808.      n\ent  should  or  should  not  be  permitted  to  be  made,  as  it  would 
Benner    ^^'^^  ^^""^  ^°  ^^^'  ''^""thcrance  of  justice. There  is  so  much  liberality 
V.         and  good  sense  in  the  opinion  which  I  have  cited,  that  i  cheer- 
luEv.      fully  subscribe  to  it.  Let  us  apply  the  principle  then  to  the  case 
before  us.  Will  the  amendment  of  the  return  ten<i  to  the  fur- 
therance of  justice?    No  one  can  entertain  a  doubt  but  it  will; 
but  whether  the  Court  of  Common  Pleas  will  think  proper  to 
make  any  amendment,  must  be  left  to  their  own  judgment. 
The\'  know  the  truth  of  the  case,  and  will  no  doubt  govern 
themselves  bv  tlic  truth. 

I  am  of  opinion  that  the  record  should  be  sent  back  to  them, 
A\  ith  leave  to  amend  if  they  think  proper. 


"''''^76''u  '         M'Kean  for  the  use  of  Dixon's  Administrators 

r/^c//;r,?^  Shannon  and  others. 

The  party  Ohajinon  and  Poalk^  in  the  course  of  their  business  as  auc- 
who  first  tioneers,  became  indebted  to  Dixon^  whose  administrators 

brings  suit 

upon  an  offi-on  the  24th  June  1805  brought  suit  on  the  official  bond  for 

cial  boml  is  ^^33  dollars  33  cents,  returnable  to  September  Term,  in  the 
entitled  to  '  ^  ' 

priority  ot  name  of  the  Governor  for  their  use.  On  the  25th  Jiine  1805, 
pajment,  a'-jjj^Qj.j^ej-  g^ijt  ^^33  brought  on  the  same  bond  for  the  use  of  Abel 

thoui{li  lie  IS  0 

prevented  Hijde;  and  on  the  same  day  another  suit  for  the  use  of  John 
froni  obtain-  sherxvhu  On  the  2d  Jnlu  1805,  a  fourth  suit  on  this  bond  was 

angjudg-  J      J  ' 

nient  by  an  brought  for  the  use  oi  Roar''s  administrators;  and  on  the  26th 
procce^dinKs  -^^^'"''^^.V  1806,  an  amicable  action  on  the  bond  was  entered  to 
upon  the  de-September  Term  1805,  for  the  use  of  the  Commonwealth.  On 
pTvtn^the  *^^  3d  March  1806,  a  rule  was  granted  upon  the  plaintiffs  in 
amount  f.f  all  these  suits  to  shew  cause  why  proceedings  should  not  be 
court  AlV  'staid,  the  defendants  having  paid  into  court  the  penalty  of  the 
subsequent  bond,  and  the  costs  of  the  first  suit.  On  the  9th  May  1 807,  the 
same  term  attorney  general  had  leave  to  take  out  of  court  658  dollars 
arc  entitled  84  cents,  the  amotmt  due  to  the  Commonwealth  for  duties; 
iflnstead  oi^^^  ^^^^  above  rule  was  continued  from  term  to  term  until  the 
suing  they  31st  March  1 808,  when  it  was  made  absolute.  On  the  same  day 
court  to  Ross  for  the  pLiintifFs  in  the  first  action  moved  for  leave  to  take 
come  in  mi-  o^t  of  court  the  balance,  or  so  much  Tis  was  necessary  to  satisfy 
suit,  priority  t^**^^^  demand  against  .5'//a;z;2<?;z  and  Poalk;  and  it  was  upon  this 
of  ajjphca-     motion  that  the  present  case  arose. 

tion  will  enti- 

tic  them  to  priority  of  payment. 


OF  PENNSYLVANIA. 


Oil 


I^oss  contended  that  by  priority  of  suit  he  was  entitled  to  the      1808. 
payment  of  his  entire  demand,  if  the  balance  in  court  was  suffi-'TTT" 
cient;  Meredith  tor  ^herxvin^  and  MrKean  [^Attorney  general)         y^ 
for  i?(3ar,  contended  for  a  firo  rata  distribution  among  all  the  Shannon. 
creditors  who  had  brought  suits  to  the  same  term. 

For  the  plaintiffs.   The  law   is   explicitly  stated   by  Chief 
Justice  M'-Kean  in  a  note  to  Dallas  v.  Chaloner'*s  executors^  (a) 
that  the  person  who  first  sues  and  obtains  judgment  on  an 
official  bond,  is  entitled  to  take  the  whole  penalty,  if  his  de- 
mand amounts  to  so  much,  in  exclusion  of  every  other  claimant. 
And  the  doctrine  was  recognised  by  the  whole  court  in  Dallas 
V.  Hazlehurst  et  at.  (b)  and  carried  still  further;  for  in  this 
case  they  say,  that  upon  principle  and  authority  the  creditor 
Jirst  suing  is  entitled  to  be  first  and  completely  paid  before 
other  creditors  are  admitted.   At  all  events,  the  priority  that 
Dixon  would  have  gained  by  getting  the  first  judgment,  he  is 
entitled  to  in  this  particular  case  by  commencing  the  first  suit; 
for  it  must  be  presumed  that  he  would  have  obtained  the  first 
judgment  had  not  the  court  interfered  by  a  rule  to  stay  pro- 
ceedings; and  they  certainly  will  not  diminish  his  security  by 
the  rule.  We  have  a  clear  legal  preference,  as  in  a  suit  against 
an  executor,  where  among  creditors  of  equal  degree,  the  party 
first  suing  is  entitled  to  be  first  paid.  3  Bl.  Comm.  19.   1  Roll. 
Abr.  925.  Cro.  Eliz.  41.   1  IVentu'.  143.  2  JVcntw.  73.  Shcp. 
Touch.  457,  8. 

For  Sherwin  and  Roar.  The  note  in  3  Dallas  appears  to 
have  been  only  a  dictum  of  the  Chief  Justice.  It  was  not 
the  point  before  the  court;  and  it  relates  exclusively  to  the  first 
judfrmciit.  In  Dallas  v.  Hazlehurst.,  the  court  did  not  decide 
that  the  creditor  first  suing  should  be  first  paid;  the  case  did 
not  admit  of  such  a  decision.  On  the  contrary,  the  record 
shews  that  a  suit  was  brought  for  the  use  of  Maria  Capper 
against  Footman\s  sureties,  which  suit  was  afterwards  sug- 
gested to  be  also  for  the  use  of  James  King.,  and  that  a  judg- 
ment was  obtained  therein  at  March  Term  1802.  Capper  and 
King  agreed  together  that  the  former  should  be  first  paid  her 

(<7)  3  Dull.  501.  (A)  4  Dull.  lOO. 


372  tJASES  IN  THE  SUPKKML  COURT 

1808.      ^vhole  ckniaml,  and  that  the  latter  shouUl  then  copie  in  for  his. 

"ZTT-  In  March   1804  Price  and  Kclhind,  two  creditors  who  never 

M'Kkan  ...  . 

-,,.         brought  suit,  petitioned  the  court  for  a  pro  rata  distribution 

Shannon,  among  ail  the  chiimants.  But  tlieir  petition  was  refused;  the 
judgment  was  paid  according  to  the  agreement  of  Guppcr  and 
King;  and  therefore  the  only  point  decided  by  the  court  was 
that  suit  and  judgment  give  a  priority  before  creditors  who 
never  bring  suit,  which  we  do  not  deny.  But  here  were  four 
suits  instituted  within  a  few  days  of  each  other  to  the  same 
term.  As  there  was  no  defence,  judgment  must  have  been 
signed  in  all  of  them  upon  the  same  day,  if  proceedings  had  not 
been  staid;  and  judgments  on  the  same  day  are  on  the  same 
footing.  En'icrick  v.  Garwood  {a).  The  act  of  Assembly  re- 
quires only  that  the  day  of  the  month  and  year  of  signing  a 
judgment  be  set  down,  but  not  the  hour  of  the  day. 

TiLGHMAN  C.  J.  delivered  the  opinion  of  the  court. 

This  action  is  brought  for  the  penalty  of  an  auctioneer's 
bond,  in  order  to  recover  a  sum  of  money  due  from  the  auc- 
tioneer, for  cash  received  on  sale  of  the  plaintiff's  goods  at 
auction. 

After  the  plaintiff  commenced  his  action,  several  other  cre- 
ditors commenced  suits  on  the  same  bond,  at  different  times, 
but  all  returnable  to  the  same  term  as  the  plaintiff's  suit.  The 
defendants  brought  into  court  the  amount  of  the  penalty  and 
costs  of  suit,  whereupon  proceedings  were  staid  before  Judg- 
ment. It  was  agreed  that  the  debt  due  to  the  Commonwealth 
for  duties  should  be  paid  in  the  first  place;  and  it  is  now  sub- 
mitted as  a  question  for  the  Court's  decision,  whether  the 
several  persons  who  have  brought  suits,  should  have  preference 
in  payment  according  to  their  respective  priority  of  suit,  or 
whether  they  should  all  come  in  equally,  pro  rata. 

If  it  was  in  the  power  of  the  court  to  distribute  the  money 
according  to  their  discretion,  it  would  be  most  agreeable  to 
their  ideas  of  equity  to  let  all  the  creditors  in  equally.  But 
they  have  no  such  power.  The  act  of  Assembly  under  which 
the  bond  was  taken,  is  silent  as  to  the  mode  of  proceeding  on  it. 
2  .S"^  Laws  777.  27th  March  1790.  The  case  must  therefore  be 
governed  by  the  general  principles  of  the  law.  If  the  plaintiff 

(«)  4  Dall.  321 


OF  PENNSYLVANIA.  373 

had  been  suffered  to  go  on  to  judgment,  I  know  of  nothing      1808. 
which  could  have  hindered  him  from  receiving  full  payment  of   M'Kean 
his  demand.  This  is  expressly  laid  down  by  M'Kean  Chief         v. 
Justice  in  the  case  of  Dallas  v.   Chaloner's  executors,  3  Dall.  Shannon. 
501.  note,  as  the  settled  rule  in  suits  on  official  bonds.  But  it  is 
said  that  in  this  case  there  is  no  judgment,  and  therefore  it  is 
not  within  the  rule.   But  why  is  there  no  judgment?   Not  by 
any  fault  of  the  plaintiff,  but  solely  because  the  court  has  or- 
dered the  proceedings  to  be  staid,  on  the  money  being  brought 
into  court.  When  the  court  make  orders  of  this  kind  for  the 
protection  of  a  defendant,  they  will  take  care  that  the  plaintiff 
receives  no  injurv.  The  plaintiff  having  brought  the  first  suit, 
it  must  be  presumed  that  he  would   have  obtained  the  first 
judgment.  Indeed  it  has  not  been  shewn  to  my  satisfaction,  that 
any  other  person  could  bring  a  second  suit  on  this  bond.  I  am 
therefore  clearly  of  opinion  that  the  plaintiff  is  entitled  to  be 
paid  the  whole  of  his  demand  in  preference  to  the  others. 

But  as  there  will  be  a  surplus  after  satisfying  the  plaintiff,  how 
is  that  to  be  disposed  of?  We  are  not  without  a  precedent  to 
assist  us  in  this  respect.  In  the  case  of  Dallas  v.  Hazlehurst,  4 
Dall.  106.  note,  a  suit  was  brought  on  an  auctioneer's  bond  for 
the  use  of  Mrs.  Gapper,  which  was  marked  on  the  record, 
before  judgment,  to  be  also  for  the  use  of  yames  King:  The 
order  of  the  court  was  that  Mrs.  Gapper  should  be  paid^r,s^, 
and  then  King.  Now  although  it  turned  out  that  there  was 
more  than  enough  to  pay  both,  yet  the  order  gives  an  express 
priority  to  Mrs.  Gapper.  After  the  judgment  was  entered,  other 
persons  who  were  creditors,  petitioned  the  court  for  leave  to 
take  the  money  among  them;  and  their  petition  was  granted; 
but  there  was  no  dispute  about  priority,  for  they  settled  that 
matter  among  themselves.  In  the  case  now  before  the  court,  I 
know  of  no  rule  so  reasonable  as  to  consider  the  action  first 
brought  as  being  for  the  use  not  only  of  the  plaintiff  who 
brought  it,  but  also  after  him  for  the  use  of  the  several  other 
persons  who  brought  suits.  U  instead  of  bringing  suits  they 
had  applied  to  the  court  for  permission  to  enter  on  the  record 
that  the  first  suit  was  for  their  use  also,  the  court  would  I  con- 
ceive in  granting  that  permission  have  governed  themselves  by 
the  prmciple  adopted  in  Dallas  v.  I/azlr/iurst,  viz.  that  j)riority 
of  application  g.jve  title  t(j  priority  of  payment.  But  in  the  pre- 
sent case  the  actions  being  all  brought  to  the  same  term,  th( 


374  CASES  IN  THE  SUPREME  COURT 

1808.      applications  to  the  court  must  be  considered  as  all  made  at  the 
7^:57^77  same  time. 

V.  Upon  the  whole  of  this  case  I  am  of  opinion  that  the  plain- 

Shaxkon.  tiff  is  entitled  in  the  first  place  to  receive  payment  of  his  whole 

demand,  and  the  surplus  is  to  be  distributed  equally  pro  rata 

among  the  other  persons  Avho  have  brought  suits  to  the  same 

term. 

Brackenridgk  J.  concurred  in  opinion  with  the  court  that 
Dixon  was  entitled  to  payment  in  the  first  instance;  but  he  said 
he  had  not  fully  made  up  his  mind  as  to  the  distribution  be- 
tween the  other  creditors. 


Saturday,  H  E  C  K  E  R  agaznst  J  A  R  R  E  T  T . 

June  25. 

The  penalty  ^  I  ^HIS  was  an  action  of  debt,  to  recover  the  penalty  of  500/. 

raUtinff'T  imposed  by  the  habeas  corpus  act  upon  any  one  who  shall, 

person  who  without  the  order  and  process  of  a  court  having  jurisdiction  of 

once  deliver- *^^  cause,  knowingly  recommit  or  imprison  a  person  for  the 

ed  for  the     same  offence  or  supposed  offence  for  which  he  has  been  once 

same  cause      ,   ,.  ,  ,    , 

on  a  habeas  delivered  on  a  habeas  corpus. 

corpus,  is  li.     The  declaration  stated  that  the  plaintifl' was  arrested  by  vir- 

rommit-        ^ue  of  an  execution  issued  by  the  Common  VXc^soi  Northamp- 

ments  for      ^q;j  county,  and  directed  to  the  defendant  who  was  the  sheriff 

crbninal        of  that  county;  that  he  was  brought  by /j«^£'a*  corpus  before 

nffence,  and    one  of  the  associate  judges  of  the  said  court,  and  by  the  said 

curred  bv      J^^^^g^  ^vas  discharged  from  imprisonment;  and  that  the  defen- 

takinj  the     Jant,  knowing  the  same,  arrested  him  and  committed  him  a 

second  time  Second  time  to  prison,  without  any  legal  order  of  the  Court  of 

in  custody     Common  Pleas  of  the  said  county,  or  any  process  issuing  out 

upon  civil  ,  •       ' r  '•  r  •  1     I 

process.  of  the  same,  other  than  the  writ  of  execution  aforesaid;  by  rea- 
son whereof  action  accrued  to  the  plaintiff  to  demand  and  have 
of  the  defendant  five  hundred  pounds,  Sec.  To  this  declaration 
the  defendant  demurred,  and  the  plaintiff  joined  in  demurrer,  (a) 

S'ligr caves  in  support  of  the  demurrer  argued,  1.  That  the 
Associate  Judge  had  no  authority  to  discharge  the  plaintiff 

(a)  This  cause  was  argued  and  decided  at  a  Circuit  Court  holden  in  North- 
ampton by  the  Cliief  Justice;  but  the  importance  otthe  dfjcision,  from  which 
there  has  been  no  appeal,  is  thought  to  be  a  sufficient  justification  for  in- 
serting it 


OF  PENNSYLVANIA.  375 

from  civil  process,  as  the  fifth  section  of  the  habeas  corpus  act  1808. 
explicitly  provides  that  nothing  therein  shall  extend  to  dis-  j^ecker 
charge  out  of  prison  anv  person  charged  with  debt  or  other  ac-  v. 
tion,  or  with  process  in  anv  civil  cause.  2  St.  Laws  241.  That  Jarrett. 
therefore  there  was  no  legal  discharge  from  this  execution,  and 
the  defendant  was  justifiable  in  committing  the  plaintift'.  2. 
That  the  eleventh  section,  by  which  the  penalty  of  five  hundred 
pounds  is  imposed,  relates  exclusively  to  commitments  and  re- 
commitments for  criminal  or  supposed  criminal  matter;  that 
the  thirteenth  section,  which  is  the  first  that  applies  to  per- 
sons restrained  of  their  liberty  under  other  pretences,  expressly 
orders  the  habeas  corpus  to  be  awarded  and  granted  under  the 
penalties  before  directed,  but  says  nothing  about  penalties  for 
other  infractions  of  the  law;  and  that  the  following  section  then 
applies  to  civil  cases  the  same  penalty  imposed  by  the  ninth  sec- 
tion in  criminal  cases  for  disobedience  of  the  writ,  going  no  fur- 
ther; so  that  the  partial  repetitiort  in  these  sections  is  conclu- 
sive to  shf;w  that  the  penalties  of  the  first  twelve  sections  are 
not  extended  generalUj  to  cases  within  the  thirteenth,  and  that 
there  is  no  penalty  for  a  recommitment  after  a  discharge  from 
civil  process.  Restraints  for  supposed  criminal  matter  are  alone 
deserving  of  the  severe  punishment  imposed  by  the  eleventh 
section;  as  no  dangerous  attack  upon  the  liberties  of  the  citizen 
is  likely  to  assume  any  other  form  than  that  of  criminal 
accusation. 

Exving  for  the  plaintiff  contended  1.  That  the  Judge  had  a 
right  to  discharge  from  civil  execution;  tliat  the  words  ot  the 
act  are  sufficienlly  comprehensive  for  this  purpose;  and  that  the 
fifth  section  applies  only  to  the  case  of  a  detainment  at  the  same 
time  for  both  civil  and  criminal  matter,  and  was  intended  to 
prevent  a  discharge  from  the  latter,  from  operating  construc- 
tively as  a  discharge  from  both.  2.  That  the  thirteenth  section 
in  the  outset  extends  to  civil  cases  all  liie  penalties  of  the  j)re- 
ceding  sections,  l)y  extending  the  provisions  of  the  act  iov  pro- 
ceeding on  the  habeas  corpus^  as  well  as  for  awarding  and 
granting  it;  and  the  repetition  of  certain  ol  tbe  jjenalties,  though 
it  may  be  intended  to  enforce  more  explicitly  the  previous  pro- 
visions, cannot,  as  there  arc  no  negative  words,  take  away 
the  evident  effect  of  tiie  affirmative  clause.  The  reason  for 


1 

376  CASES  IN  THE  SUPREME  COURT 

1808.      applying  all  the  penalties,  is  as  complete  as  that  for  applying 


T 


Jamuett.  Tilghman  C.  J.  The  habeas  corpus  act  contains  distinct 
provisions  for  the  relief  of  persons  imprisoned  for  criminal  and 
for  civil  matters.  The  first  twelve  sections  relate  to  criminal 
matters.  The  eighth  section  imposes  a  penalty  of  300/.  on  any 
judge  or  justice  who  shall  refuse  or  neglect  to  arva r d  ?iny  writ 
of  habeas  corpus  required  to  be  granted  by  the  act.  The  ninth 
section  Imposes  on  officers,  sherlfis,  gaolers  &c.  to  whom  writs 
of  habeas  corpus  shall  be  directed,  and  who  shall  refuse  or  neg- 
lect to  jnaie  retuni  or  to  bring  the  bodv  of  the  prisoner  ac- 
cording to  the  command  of  the  writ,  a  forfeiture  to  the  party 
grieved  of  100/.  for  the  fust  offence,  and  for  the  second  200/. 
and  also  an  incapacity  on  the  officer  to  hold  his  office.  The  tenth 
section  imposes  the  like  forfeiture  and  incapacity  on  officers 
refusing  to  deliver,  upon  demand,  a  copy  of  the  warrant  of 
commitment  and  detainer  of  any  prisoner.  The  eleventh  section 
enacts  that  no  person  who  shall  be  delivered  on  any  habeas  cor- 
pus^ shall  be  again  committed  or  imprisoned  for  the  same  of- 
fence by  any  person  whatever,  other  than  by  the  legal  order  and 
process  of  such  court  wherein  he  is  bound  by  recognisance  to 
appear,  or  other  court  having  jurisdiction  of  the  cause;  and  that 
any  person,  who  shall  knowingly  recommit  or  imprison  such 
person  for  the  same  offence  or  supposed  offence,  shall  forfeit  to 
the  party  grieved  five  hundred  pounds. 

It  is  very  clear  that  this  eleventh  section  relates  solely  to  the 
cases  of  persons  confined  for  criminal  or  supposed  criminal 
matter;  because  it  makes  no  menilon  of  any  persons  but  those 
who  are  committed  for  offences. 

The  thirteenth  section  extends  "  all  the  provisions  before 
■■'  made  for  the  awarding  and  granting  writs  of  habeas  corpus 
"  and  proceeding  thereon^  in  case  of  commitment  or  detainer 
"  for  any  criminal  or  supposed  criminal  matter,  to  persons,  not 
-'  being  committed  or  detained  for  any  criminal  or  supposed 
'■'  criminal  matter,  but  confined  or  restrained  of  their  liberty 
■■'  under  any  colour  or  pretence  whatsoever;"  and  the  same  sec- 
tion goes  on  to  provide  that  upon  a  certain  oath  being  taken, 
"  a  habeas  corpus  shall  be  awarded  and  granted  in  the  same 
^  manner,  tuid  under  the  same  penalties,  to  be  recovered  front! 
"•  the  same  persons  as  is  herein  before  directed." 


OF  PENNSYLVANIA.  ^""^ 


O/    4 


It  is  contended  by  the  plaintiff,  that  under  the  general  words  1808. 
of  the  thirteenth  section,  all  penalties  of  every  kind  imposed  o^i  Hecker 
any  persons  in  any  cases  whatever  by  any  of  the  preceding  sec-  u. 
tions,  are  extended  to  civil  cases.  The  most  general  words  in  Jauret  r. 
the  thirteenth  section  are  those  which  mention  "  all  provisions 
"  before  made  for  the  awarding  and  granting  writs  of  habeas 
*'•  corpus^  and  proceeding  thereon^''  Had  the  provision  respect- 
ing civil  matters  stopt  there,  there  might  have  been  some 
ground  for  the  argument,  that  the  intent  of  the  law  was  to  ex- 
tend the  same  penalties  which  had  been  imposed  in  criminal  mat- 
ters, to  all  persons  and  all  cases  in  civil  matters.  But  it  is  evi- 
dent that  such  was  not  the  opinion  of  the  legislature,  because 
in  a  subsequent  part  of  the  same  section  a  habeas  corpus  is  or- 
dered to  be  axuarded  and  granted  in  the  same  manner  and  un- 
der the  same  penalties,  to  be  recovered  from  the  same  persons 
as  is  before  directed.  Now  if  the  first  part  of  the  section  had 
been  sufficient  to  extend  all  penalties  in  all  cases,  the  latter  part 
extending  one  of  the  penalties  in  a  particular  case,  would  have 
been  not  only  unnecessary  but  improper.  But  to  make  the  mat- 
ter still  clearer,  the  fourteenth  section  goes  on  to  provide  particu- 
lar penalties  in  other  particular  civil  cases;  that  is  to  say,  in  cases 
of  writs  oi  habeas  corpus  not  being  returned,  or  the  bodies  of 
prisoners  not  bein^  produced  by  the  persons  to  whom  the  writs 
are  directed;  but  there  is  a  total  omission  of  any  penalty  for  im- 
prisoning a  person  a  second  time  for  the  same  cause  for  which 
he  had  been  before  imprisoned  and  discharged. 

If  it  is  asked  why  a  penalty  should  not  be  inflicted  upon 
a  second  imprisonment  in  a  civil  as  well  as  in  a  criminal 
case,  it  is  suflicient  to  answer,  that  the  case  being  omit- 
ted, the  penalty  cannot  be  inflicted,  even  supposing  that 
such  omission  was  Iiy  accident,  and  without  reason.  Jiut  there 
may  have  been  a  very  good  reason  why  this  penalty  was  de- 
signedly omitted  in  civil  cases.  It  is  this;  that  the  object  of  the 
habeas  corpus  act  was  to  protect  the  liberty  of  individual  citi- 
zens; and  the  danger  of  oppression  is  not  so  great  in  civil  mat- 
ters, as  in  case  of  crimes  or  supposed  crimes.  Ciovernments 
oftenjmagnify  real  crimes, and  sometimes  impute  offrnccs  false- 
ly to  innocent  persons,  for  tiie  purpose  of  ojjjircssion.  From  this 
quarter  has  generally  arisen  the  danger  to  liberty;  and  this 
might  have  induced  the  legislature  of  Pennsylvania  to  omit  tin 
penalty  in  civil  cases.  Be  that  as  it  mav,  as  they  have  omitted 

Vol.  I,  n  B      ' 


J78  CASES  IN  THE  SUPREME  COURT 

1808.      '*i  ^"^  ^^  '^  ^^  ^  ^^*^^'  established  rule  of  construction  that  penal- 
~  'tics  are  not  to  be  imposed  without  express  words,  or  necessary 

HeCKEU  r  .     ■  1  •       •         •  •    1      I      ' 

■;.,         implication,  I  am  of  opinion  that  the  ])laintifF  is  not  entitled  to 
Jarbett.  recover  the  penaltv  of  500/,  upon  the  case  stated  in  his  decla- 
ration. Judgment  must  be  entered  for  the  defendant. 

Judgment  for  defendant. 


lb  378f 
3srS46 
3pwll6 
JULY    TERM.     1808.  3pw362 

8w255 
6w494 

junAur)',  Lessee  of  Syler  and  wife  ap-amst  Peter  and  „I'^;H 

Jul\   llth.  TREDERICK    LcKHART.  «i    yj*| 

J'7      8l| 

A  parol  g-ift  rTpHE  ^yife  oi  Siller  was  the  daughter  of  John  Eckhart,  de- 

oflaiids  by  a      I  ,    .        ,    r       i  u-  -nu     i 

father  to  liis  ceascd,  and  the  defendants  were  his  sons.   1  he  latter  were 

son,  accom-  -^^  possession  of  different  parts  of  a  tract  of  land,  which  it  was 

pained  with         '  i       r    i  i       j-     i  • 

possession,    alleged  belonged  to  the  lather  who  died  intestate;  and  this  eject- 

and  follow edj^^j^j^j.  ^^.^^g  brouffht  to  recover  the  portion  which   descended  to 

bv  the  son  s  ^  .  ' 

iTiakinff  im-  the  daughter.  There  was  no  dispute  that  the  land  was  formerly 

provcmeiits  q^.^^^^j  by  t^g  father;  but  the  defence  set  up  was  this,  that  the 

on  the  land,  -  '  ' 

is  vah.l,  not- father  made  -Jl  parol  gift  to  the  defendants  of  the  land  they  re- 

^*li'^'^^^^^'^j"^spectively  occupied  at  the  trial,  being  parts  of  a  larger  tract  on 
fr.auds  and  which  he  resided,  and  put  them  in  possession  nearly  twenty  years 
perjuries.  before  his  death;  that  they  continued  in  their  possession  during 
his  life,  made  valuable  improvements,  and  paid  the  taxes  which 
•were  assessed  in  their  respective  names,  and  not  in  that  of  the 
father.  No  deed  passed  to  either  of  them;  but  one  witness  swore 
that  the  father,  a  few  years  before  his  death,  pointed  out  the  divi- 
sion line  of  the  land  which  he  said  he  hadgiveji  to  his  sons  Fre- 
derick  and  Peter;  and  also  that  when  Peter  exchanged  three  or 
four  acres  of  his  part  with  one  Snyder  who  wanted  a  deed  from 
the  father,  the  latter  told  him  he  must  get  it  from  Peter.  Other 
witnesses  swore  to  the  like  declarations  of  the  father,  that  he 
had  given  the  land  to  his  sons ;  but  there  was  some  contradic- 
tion in  the  testimony  taken  together. 

The  cause  was  tried  at  a  Circuit  Court  for  Dauphin^  before 
Ye  ATEs  J.  who  charged  the  jury  that  if  they  were  satisfied  that 
yohn  Eckhart  had  made  an  actual  gift  of  the  land  to  his  sons, 
they  should  find  for  the  defendants;  but  if  .they  thought  his  in- 


OF  PENNSYLVANIA.  379 

tention  was  to  jvlve  them  possession  nicivlv,  reserving  the  title      1808. 
to  himself,  thev  should  find  for  the  plaintiff.  The  jury  ioimd  for     Lessee 
the  plaintiff  apjainst  the  inclination  of  his  Honour's  mind;  and  a         of 
motion  was  made  for  a  new  trial,  which  was  overruled  by  con-     ^yler 
sent  and  without  argument,  that  the  question  might  come  t>y£__„. j^^ 
appeal  to  this  court. 

It  was  accordingly  now  argued  upon  that  appeal,  by  Duncan 
for  the  plaintiff,  and  l)v  Elder  and  Hopkins  for  the  defendants; 
and  although  several  points  were  made  to  the  court  upon  the 
evidence  reported  hv  Judge  Yeates,  as  that  Siiler^s  wife  had 
been  advanced  in  her  father's  life  time,  and  therefore  was  not 
entitled  to  a  share  of  his  estate,  until  the  advancement  was 
brough  into  hotchpot^  and  also  that  the  whole  was  a  question 
of  fact  which  the  jurv  had  a  right  to  determine,  the  material 
point  was,  whether  a  parol  gift  of  land,  under  the  circumstances 
of  this  case,  passed  the  title. 

For  the  defendants  it  was  argued,  that  this  court  proceeding 
upon  equitv  principles,  would,  like  a  Court  of  Chancery,  carry 
into  effect  anv  parol  agreement  concerning  lands,  where  it  was 
in  part  performed;  for  the  statute  of  frauds  should  never  be 
so  turned,  construed,  or  used,  as  to  protect  or  be  a  means  of 
fraud.  That  delivery  of  possession  had  always  been  held  to 
be  a  part  performance,  especially  if  money  had  been  expended 
in  improvements.  1  Fonhl.  105.  168.  175.  Sug'den\s-  Lorv  of  Fen- 
dors,  fe?r.  65.  73.  Will.',-  v.  Strndling;  (a)  Earl  of  Aijle.sford\'< 
case,  (h  That  there  was  no  difference  as  to  this  point  between 
a  parol  gift  upon  the  consideration  of  natural  love  and  affection, 
and  a  parol  transfer  for  money;  and  that  it  would  be  a  gross 
fraud  upon  the  defendants  to  defeat  their  title,  after  having  been 
more  than  twenty  years  in  possession,  converted  the  land  from 
a  wilderness  to  a  farm,  paid  the  taxes,  and  exercised  acts  of 
complc  te  own'-rship  with  the  consent  and  direction  of  the  fa- 
ther. There  v>  as  clear  proof  of  a  gift,  and  the  verdict  was  there- 
fore against  law  and  evidence. 

For  the  plaintiff  it  was  contended,  th:it  by  the  Act  of  fraud.'' 
and  perjuries  of  2l5t  March  1772,  1  St.  Laws  640.^  an  estate 

(a)   ,irrz.>r.  381.  (■,<.>  Q.9<rrt   rft"! 


1' 
KCKHART 


J80  CASES  IN  THE  SUPREME  GOURT 

1808.  'jy  invent  and  seisin  only,  or  by  parol,  is  nothing  more  than  an 
I  gg^.jj  estate  at  will;  and  that  this  Act  should  not  be  frittered  away  b} 
of  distinctions,  as  it  had  been  a  sulijcct  of  regret  among  the  judges 
Syler  in  England  that  the  provisions  of  their  statute  had  ever  been  in- 
fringed or  weakened  by  construction.  Cooper  v.  Elst07i.  (a) 
That  from  this  sentiment  the  modern  cases  had  gone  upon 
much  stricter  grounds  than  formerly,  refusing  to  consider  the 
payment  of  money  as  a  part  performance.  That  at  all  events, 
cases  of  part  performance  by  delivery  of  possession  existed  only 
as  between  vendor  and  vendee,  and  in  such  of  those  cases  mere- 
ly wherein  the  vendee's  possession  was  inconsistent  with  the  ven- 
dor's title,  Wills  v.  Stradling  before  cited,  and  1  Sugden  73. ;  but 
that  delivery  of  possession  by  a  parent  to  a  child  was  not  inconsis- 
tent with  the  parent's  title,  particularly  where  the  father  and 
family  I'c  sided  on  the  same  tract,  and  possession  of  part  only  was 
delivered  to  the  son.  The  question  of  gift  or  not  was  however 
a  question  of  fact,  and  so  left  to  the  jury  whose  province  it  Avas 
to  decide. 

The  opinion  of  the  Court  was  delivered  by 

TiLGiiMAN  C.  J.  This  is  an  appeal  from  the  Circuit  Court 
of  Dauphin  county,  on  a  motion  for  a  new  trial,  oveiTuled  by 
Judge  Yeates  who  tried  the  cause,  without  argument  and  by 
consent. 

The  defendants  relied  on  a  parol  gift  of  lands  by  their  de- 
ceased father,  in  consequence  of  which  they  had  made  valuable 
improvements,  and  had  long  possession  in  their  fathei's  life 
time. 

Although  the  court  arc  not  disposed  to  extend  the  principles 
on  which  parol  agreements  concerning  lands  have  been  confirm- 
ed, farther  than  they  have  been  already  carried,  yet  they  are 
bound  by  what  has  been  decided.  It  has  been  settled  that  where 
a  parol  agreement  is  clearly  proved,  in  consequence  of  which  one 
of  the  parties  has  taken  possession  and  made  valuable  improve- 
ments, such  agreement  shall  be  carried  into  effect.  We  see  no 
material  difference  between  a  sale  and  a  gift;  because  it  certain- 
ly would  be  fraudulent  conduct  in  a  parent  to  make  a  gift  which 
he  knew  to  be  void,  and  thus  entice  his  child  into  a  great  ex- 
penditure of  money  and  labour,  of  which  he  meant  to  reap  the 

{a)  7  D.^  E.  14»» 


OF  PENNSYLVANIA.  381 

benefit  himself.  Whether  such  gift  was  made  in  the  present  in-      1808. 
stance  was  submitted  by  the  court  to  the  jury.The  jury  thought     j^^gg^^. 
there  was  not  a  gift;  but  the  Judge  who  tried  the  cause  was  dis-         of 
satisfied  with  the  verdict,  and  thought  that  the  evidence  in     Syleu 
favour  of  the  gift  greatly  preponderated.   He  was  better  able         '^'• 
to  judge  of  this  matter  than  we,  who  only  take  the  evidence 
from  his  notes;  and  therefore  his  opinion  is  entitled  to  great 
weight.  But  independent  of  that,  enough  has  appeared  to  satisfy 
us  that  there  is  reasonable  ground  for  a  new  trial.  The  Court 
forbear  to  enter  into  remarks  upon  the  evidence,  as  the  cause 
is  to  be  tried  again. 

New  trial  awarded. 


Drum  as^a'mst  Snyder  and  another,  administrators 

65-552  Oi    SELIN. 

2s  f  73i  Sunburv, 


35  r  67 


Monday, 

In  Error.  jdy  lith. 

^  I  ''HIS  case  came  up  from  the  Common  Pleas  of  Ao;/////;?i-Tlic  record 
-*-    I'crltpu/  couvtv  by  writ  of  error.  The  defendants  in  error"  *;'"k,'5' 
on  the  23d  jful/j  1803,  obtained  a  judgment  against  Drum  for  justice  otilie 
17/.  10*.  with  costs,  before  a  justice  of  the  peace;  and  on  the  r^j^^^^^ns  bc- 
22d  oi  Aug^tist  following  filed  a  transcript  of  that  judgment  in^"'"'^  '>''"i» 
the  Common  Pleas.  They  withdrew  this  transcript  on  the  30ih  {'i"^  foi^ndu- 
August  1804,  and  in  November  of  the  same  year  obtained  at'onola 

i__  ^   L    f  ^1.  •       ^'         •  ■         r     •  1      scire  facias, 

judgment  betore  the  same  justice  m  a  scire  Jaaas  upon  the  ^fj^,,.  ^  ^p^,,. 
original   judgment.  The   proceedings  were  then  removed  by  script  has 

«•  •    ^        I        /-  111  1  1.-1  been  filed  in 

certiorari   to   the   Common    Tlcas,  where   the  judgment  was,i,p  commnn 

affirmed.  l'K-;ts  vmikr 

The  error  alleged  was  this,  that  the  original  judgment  was  April  19tb 
removed  from  before  the  magistrate,  and  became  a  judgment  ^"-'^ 
of  the   Common   Pleas  by  filing  the  transcript  in  that  Court; 
•f  course  that  there  was  nothing  whereon  to  found  the  scire 
facias. 

By  the  art  oi  March   1st  IT-I-.S,  called  the  I'ive  pound  Law, 
1  St.  Jmu'.s  304.  it  is  enacted  that  after  juflgment  given  by  a 
justice  of  the  peace,  he  sliall  issue  an  execution  directing  th( 
constable  to  levy  the  debt  and  costs  of  the  defendant's  .^-ocr/v  ancf 
chattels^  and  for  want  of  sufficient  distress  to  take  and  imprison 


382  CASES  IN  THE  SUPREME  COURT 

1808.  Jiis  hodij ;  but  in  case  no  assets  can  be  found  sufficient  to  pay 
Drum  ^^^'^  '^"*^  costs,  it  provides  that  the  justice  shall  give  a  tran- 
x<.  script  of  his  judgment  to  the  plaintiff,  who  upon  filing  the  same 
Snydf.r.  in  the  Common  Pleas,  may  proceed  to  levy  the  debt  and  costs 
on  the  lands  and  tenements  of  the  defendant  by  fieri  facias  &c. 
in  like  manner  as  by  law  is  provided  in  other  cases.  Sec.  3. 
This  provision  continued  to  govern  upon  the  subject  of  tran- 
scripts, after  the  jurisdiction  of  justices  was  extended  by  the  act 
of  5th  April  1785,  to  ten  pounds;  but  by  the  act  of  19th  April 
1794,  called  the  Twenty  pound  Law,  3  St.  Laws  536.  which 
incorporates  all  the  regulations  of  the  law  of  1745,  and  applies 
them  to  the  increased  jurisdiction  of  the  magistrate,  it  is 
enacted  that  the  justice  before  whom  judgment  is  obtained, 
shall  upon  request  make  out  and  deliver  a  transcript  of  such 
judgment  under  his  hand  and  seal;  and  upon  such  transcript 
being  filed  in  the  prothonotary's  office,  it  shall  have  the  same 
cff'cct  as  judgments  obtained  in  the  Courts  of  Common  Pleas. 
Sec.  3. 

D.  Smith  and  Hall  for  the  plaintiff  in  error,  argued  that  by 
the  filing  of  the  transcript  in  the  Common  Pleas  the  jurisdiction 
of  that  court  attached,  from  which  moment  the  authority  of  the 
justice  in  the  particular  suit  was  at  an  end;  that  as  the  Twenty 
pound  Law  gives  to  the  transcript  the  sarne  effect  as  a  judgment 
in  the  Common  Pleas,  it  makes  it  to  all  intents  a  judgment  of 
that  court  to  be  enforced  by  its  ordinary  process  of  execution; 
and  that  therefore  no  judgment  could  remain  before  the  justice, 
otherwise  there  would  be  two  judgments  against  the  defendant, 
imder  both  of  which  he  would  be  liable  to  execution. 

Evans  for  the  defendants  in  error  replied,  that  the  only  design 
of  the  transcript  under  the  Twenty  pound  Law,  was  to  create  a 
lien  upon  the  defendant's  lands.  That  the  provision  of  the  law 
of  1745  was  defective,  inasmuch  as  it  did  not  make  the  tran- 
script a  lien,  nor  permit  it  to  be  filed  until  execution  had  gone 
against  the  defendant's  goods,  and  they  were  found  insufficient; 
which  evil  the  third  section  of  the  law  of  1 794  merely  remedied, 
by  autliorizing  a  transcript  to  be  filed  at  any  time  after  judg- 
ment, and  by  making  it  a  lien  in  the  same  manner  as  judgments 
of  the  Common  Pleas;  but  that  the  defendant's  body  still  con- 
tinued exempt  from  execution  af^er  the  transcript  was  filed,  if 


OF  PENNSYLVANIA.  333 

he  had  goods,  no  part  of  ihe  law  of  1745  as  to  execution  being      I8O8. 
repealed  by  the  law  of  1794-;  whereas  if  the  transcript  became  a     ^ 
judgment  of  the  Common  Pleas,  execution  might  have  gone,         ^ 
until  a  recent  law,  against  body,  lands,  or  goods,  in  the  order  the   Snyder  . 
plaintiff  should  elect.  The  judgment  remaining  before  the  jus- 
tice for  the  purpose  of  execution,  it  was  of  course  a  good 
ground  for  the  scire  facias. 

The  opinion  of  the  Court  was  delivered  by 

TiLGHMAN  C.  J.  The  case  turns  upon  the  act  of  19th  April 
1794,  commonly  called  the  Twenty  pound  Act.  By  this  act  the 
jurisdiction  vested  in  the  justices  of  the  peace  by  the  act  of  1st 
March  1 745  was  extended  to  debts  not  exceedingtwenty  pounds, 
under  the  same  regulations,  restrictions,  and  exceptions,  as  are 
contained  in  that  act  "  in  the  same  manner  as  if  the  said  act  had 
"been  recapitulated  and  reenacted,"  other  than  the  limitation 
to  debts  not  exceeding  five  pounds.  It  becomes  necessary  there- 
fore to  refer  to  the  provisions  of  the  act  of  1745.  It  gave  a  stay 
of  execution  of  three  months  to  freeholders,  and  also  to  persons 
not  freeholders,  provided  they  entered  bail  in  the  manner  pre- 
scribed by  the  act.  It  gave  an  appeal  to  the  Court  of  Common 
Pleas.  The  execution  to  be  issued  by  the  justice  was  to  be  le- 
vied on  the  defendant's  goods  if  he  had  any,  before  his  bod)' 
could  be  taken;  and  in  case  there  were  no  goods  to  be  found, 
the  plaintiff  might  file  a  transcript  in  the  Court  of  Common 
Pleas,  from  whence  an  execution  might  issue  to  levy  the  debt 
on  the  defenthuu's  lands.  Hut  by  the  third  section  of  the  act  of 
19th  April  1794,  the  plaintiff  might  file  a  transcript  of  the  judg- 
ment in  the  Court  of  Common  Pleas  at  any  time;  and  such  tran- 
script when  filed  was  to  have  "  the  same  effect"  as  a  judgment  in 
the  Court  of  Common  Pleas. 

The  plaintiff  in  error  contends,  that  by  the  filing  of  the  tran- 
script the  record  was  comjjietely  removed  from  the  justice,  so 
as  to  oust  him  of  all  liis  jurisdiction;  and  that  the  juilgnient  is 
to  be  considered  to  all  intents  and  purposes  as  a  judgment  of  the 
Common  Pleas.  It  a|)pears  to  us  that  this  was  not  the  intent  of 
the  law.  The  act  of  1 74.^  had  suHieiently  j)rovided  for  the  issuing 
an  execution  from  the  Common  Pleas  to  levy  on  lands;  but  it  was 
defective  in  not  permitting  the  j)laintiff  to  obtain  a  lien  on  the 
lands  of  the  defendant  I))'  filing  the  transcript,  until  alter  he  had 
proceeded  against  the  goods;  and  there  mightpcrhapsbeadoubt 


384  CASES  IN  THE  SUPREME  COURT 

1808.      ^vhetiler  it  created  a  lien  at  all,  or  whether  it  ranked  as  a  judg- 
"TT  nient  of  the  Common  Pleas  when  considered  as  a  debt  due  from 

1,.  a  deceased  person  whose  assets  were  insufficient  to  pay  his 
Snyder,  debts.  To  remove  all  difficulty  in  these  respects,  it  was  thought 
proper  to  introduce  the  clause  in  the  act  of  1 794,  which  autho- 
rizes the  plaintifl'  to  file  the  transcript  inmiediately^  and  gives  it 
when  filed  the  same  effect  as  a  judgment  in  the  Common  Pleas. 
But  it  was  not  meant  to  take  away  from  the  defendant  the  pro- 
tection against  imprisonment  while  he  had  goods,  which  is 
given  him  by  the  act  of  1 745 ;  and  which  would  be  the  case  if  it  is 
to  be  considered  simply  as  a  judgment  of  the  Common  Pleas. 
This  would  be  construing  the  law  so  as  to  defeat  one  part  of 
it  by  another,  which  is  never  to  be  done  if  it  can  be  avoided. 
The  record  for  some  purposes  remains  before  the  justice  after 
the  transcript  filed  in  the  Common  Pleas.  An  appeal  may  be 
made,  or  the  record  removed  by  ccrtiorariy  in  both  which  cases 
it  is  supposed  to  remain  before  the  justice;  so  proceedings 
may  be  had  against  the  special  bail.  There  is  no  inconsist- 
ency in  supposing  the  record  to  remain  before  the  justice,  while 
at  the  same  time  a  transcript  exists  in  the  Common  Pleas,  hav- 
ing the  effect  of  a  judgment  there,  on  which  execution  may  be 
issued  in  case  the  debt  is  not  levied  by  an  execution  from  the 
iustice.  This  mode  of  construction  makes  a  consistent  system, 
and  is  injurious  to  neither  party.  The  Court  is  therefore  of  opi- 
nion that  there  was  no  irregularity  in  the  proceedings  before  the 
justice,  and  that  the  judgment  of  the  Court  of  Common  Pleas 
be  affirmed. 

Judgment  affirmed^ 


OF  PENNSYLVANIA.  385 

1808. 


Sunbury, 

Lessee  of  Buchanan  a^avist  M'Clure  and  Smith.  Saturdav, 

^  July  16tli. 

^  I  "'HIS  cause  was  tried  before  Brackenridge  J.  at  a  Circuit  An  impiove- 

-*•    Court  for  Northumberland^  in  May  1804.  It  was  an  tj*^^^"  settlement 
ment  for  land  lying  within  the  purchase  from  the  Indians  of"" 'andspur- 
November  1768.   The  lessor  of  the   plaintiff  claimed  under  an  |i,(.j„ji^„g 
improvement   and   settlement  made  between  the  date  of  that '"  November 
purchase,  and  the  opening  of  the  land  office  on  the  third  of  ^j&ri/bttxv'eenthat 
1769.   He  also  shewed  an  application  for  the  land,  entered  the<^^'^.»"'l  ^!*^ 
dav  on   which  the  land  office  was  opened,  and  drawn  in  the  lot- the  land 
terv  devised  at  that  time   to  fix  the  priority  of  the  respective  ":;^*^'^  °!' the 
applications.  The  defendants  claimed  under  an  application  de- 1759,  <rive 

scriptive  of  the  land,  entered  on  the  same  day  with  the  plaintiff's,""  pretcr- 

,  ,"  .  ,  ence  to  the 

but  of  ?L  prior  numl)er  according  to  the  decision  of  the  lottery.    s<  ttler 

The  reason  of  resorting  to  a  lottery,  as  well  as  the  effect  of  it,  ^rT^'ost  a 

•  .  „        'descnptive 

appeared  by  a  Statement  drawn  up  by  the   proprietary  officers  iqiplication 

at  the  openincc  of  the  land  office.  It  recited  that  the  3d  of  April ''l^^"]'^^^,  *" 
1769  being  appointed  for  opennig  the  land  office  for  the  new  (ire  on  tho 
purchase  made  at  the  treaty  of  Fort  Stanwix^  and  it  being '^f^^  '^  . 
known  that  great  numl)ers  of  people  would  attend  ready  to  give 
in  their  locations  at  the  same  instant,  it  was  the  opinion  of  the 
governor  and  the  proprietar\-  agents,  that  the  most  unexcep- 
tionable methf)d  of  receiving  the  locations,  would  be  to  put  them 
all  together,  after  being  received  from  the  people,  into  a  box  or 
trunk,  and  after  mixing  them  well  together  to  draw  them  out, 
and  number  them  in  the  order  they  shoidd  be  drawn,  in  order 
to  determine  the  preference  of  the  applicants.  Those  who  had 
settled  plantations,  especially  those  who  had  settled  by  permis- 
sion of  the  commanding  officers  to  the  westward,  were  declared 
to  have  a  preference.  Hut  tiiose  persons  who  had  settled  or 
made  zohaf  thrif  vallrd  improvements^  since  the  f)urcliasi\  it  wa'i 
declared  should  not  thereby  acquire  any  advantage. 

Upon  this  case  his  Honour  charged  the  jury,  that  an  improve- 
ment and  settlement  made  l)etween  the  time  of  the  purchase  in 
1768  and  the  opening  of  the  office  on  the  3d  of  April  1769 
within  that  purchase,  gave  a  preference  to  the  setlkr,  even 
against  an  application  i)roperly  describing  the  land;  and  that 

No.  2,  accompanicfl  with  such  a  settlement,  was  entitled  to  a 
Vol.  I.  T  (' 


J86  CASES  IN  THE  SUPRExME  COURT 

1808.      prctercncc  over  No.  1.    The  jury   accordingly  found  for  the 

I  plaintiir.  A  motion  for  u  new  trial  was  then  made  and  overruled, 

Lessee     '  ,  _  ' 

ot'         and  the  defendants  appealed  to  this  court. 
Buchanan      Upon  the  argument  here,  several  questions  were  raised  whicK 
'''■         had  no  connection  with  the  principal  point,  the  misdirection  of 
'  the  Judge  in  his  charge.   Upon  this  point — 

Watts  for  the  defendant  argued,  that  the  proprietaries,  who 
were  the  exclusive  owners  of  the  soil,  had  a  right  to  grant  it  up- 
on any  terms  they  chose;  and  that  by  the  preamble  to  the  lotte- 
ry they  explicitly  refused  a  preference  to  a  settlement  like  the 
plaintifl's.  That  therefore  the  settlement  was  out  of  the  ques- 
tion, and  the  case  stood  upon  the  two  interfering  applications, 
t>f  which  the  defendant's  was  first  drawn.  With  respect  to  lands 
previously  purchased  of  the  Ijic/iani\,  the  uniform  practice  of  the 
proprietaries  in  giving  a  preference  to  settlers,  had,  it  was  true, 
at  last  made  the  law  in  regard  to  those  lands;  but  with  I'eference 
10  this  purchase  there  was  no  usage  established  before  the 
opening  of  the  land  office;  and  the  circumstance  of  the  office 
remaining  shut  as  to  these  lands  five  months  after  the  purchase, 
was  of  itself  an  evidence  that  no  title  to  them  could  originate  in 
that  interval.  If  an  improvement  after  the  purchase  could  have 
been  the  foundation  of  a  title,  the  proprietaries  could  not  have 
performed  the  promise  made  by  the  lottery,  the  scheme  of 
which  went  expressl)'  upon  the  ground  that  no  preference  at- 
tached to  such  improvement.  The  preference  was  limited  to  a 
meritorious  class  of  people  Avho  had  settled  under  special  licen- 
ces before  the  purchase,  or  having  gone  on  without  licence  had 
left  their  settlement  in  consequence  of  the  act  of  3d  February 
1768,  1  St.  Larvs  489.,  and  the  proclamation  of  the  governor 
founded  upon  it.  On  these  principles  the  board  of  property  de- 
cided in  favour  of  the  defendant,  in  March  1770;  and  in  Novem- 
ber 1 789  there  was  a  verdict  and  judgment  before  Atlee  and  Irtish 
Justices  of  the  Supreme  Court,  in  conformity  to  that  decision. 

Evans  for  the  plaintiff  contended,  that  as  he  had  settled  on  the 
land  after  the  purchase  was  made,  he  was  entitled  to  a  preference, 
whether  the  proprietaries  were  willing  to  give  it  or  not.  The 
acts  of  Assembly  countenanced  the  settlement  by  prohibiting  it 
only  on  unpurchased  lands;  and  the  instant  the  purchase  was 
made,  the  right  of  settlement  attached  in  the  citizen  under  the 


OF  PENNSYLVANIA.  ^8'. 

influenceof  a  practice,  which  at  last  had  become  the  law  of  the  land      1808. 


as  to  all  the  vacant  lands  in  the  Commonwealth.  Settlement  was     Lessee 
not  confined  to  a  particular  district;  it  was  a  mode  of  obtaining         of 
title,  as  operative  as  a  warrant,  and  as  extensive  as  the  unap- "^'^"^^'^^ 
propriated  land  in  the  state.   It  did  not  depend  upon  the  land  \itr;LuRE 
office  being  open.  To  cut  off  the  right  to  settle  these  lands  dur- 
ing the  interval  in  question,  was  in  fact  to  say  that  it  could  not 
exist  after  the  land  office  opened,  until  it  was  expressly  sanc- 
tioned by  the  proprietaries;  for  the  usage  could  not  applv  with 
more  force  to  these  lands  after  the  office  opened,  than  it  did 
before.  The  proprietaries  however  did  not  intend  to  deprive 
the  plaintiff  of  a  preference.  Such  an  intention  is  not  to  be  pre- 
sumed, as  it  would  have  been  unjust,  and  the  preamble  does  not 
in  fact  discover  it.   The  real  object  was  to  deprive  individuals 
of  any  advantage  from  a  mere  colourable  improvement;  "  such 
''  persons  as  had  made  7vhat  they  callimpro'-oements^  should  riot 
"•'acquire  anv  advantage;"  but  there  is  nothing  to  exclude  the 
preference  legally  due  to  those,  who  like  the  plaintiff,  made  a 
bonajide  settlement  with  much  labour,  and  in  the  exti-emity  of 
winter. 

TiLGHMAN  C.  J.  This  cause  was  tried  at  a  Circuit  Courf 
at  Sunbury  in  May  1804,  when  a  verdict  was  given  for  the 
plaintiff.  A  motion  for  a  new  trial  was  made  and  overruled, 
upon  which  the  defendants  entered  an  appeal  to  this  Court. 
The  principal  reason  relied  on  in  support  of  the  appeal,  is  a 
supposed  misdirection  in  point  of  law  by  Judge  Brach-f iridic, 
who  directed  the  jury  that  an  improvement  and  settlement 
made  between  the  time  of  the  purchase  by  the  late  proprieta- 
ries of  Pctin.syhania  of  the  Indians  in  the  month  of  November 
1768,  and  the  opening  of  the  land  office  on  the  3d  Af)rU  1769, 
for  the  sale  of  the  lands  included  in  that  purchase,  gave  a  pre- 
ference to  the  settler  against  an  application  properly  ilescribing 
the  land  in  question,  entered  in  the  land  office  3d  April  1769. 

The  counsel  on  i)oth  sides  made  a  written  recpurst  that  r/Z/the 
Judges  of  this  Court  would  sit  on  the  argument  here,  and  this 
request  has  been  complied  with  to  prevent  a  failure  of  justice. 
Without  such  request  we  should  have  found  ourselves  under 
great  difficulty.  Judges  Tratcs  and  Sinilli  are  so  nearly  related 
to  Mr.  Charh'H  Smith  who  is  concerned  in  interest,  that  if  it 
could  have  been  avoided  ihcv  would  have   declined   sittinj::. 


538  CASES  IN  THE  SUPREME  COURT 

1808.      Jii*Jc;<-'  Brackenrulirc  diTivered  the  opinion  IVom  -which  an  ap- 

— :  pc;il  was  made,  and  I  was  concerned  in  the  trial  as  counsel  for 

Ecssec      ',      ,  ^      , 
of         the  defendants. 

Brc  M  AKAN      To  form  a  correct  decision  in  this  cause,  it  will  be  necessary  to 

^'-         advert  to  the  terms  on  which  the  land  office  was  opened  3d  April 

'M'Clure  •         • 

1 769.  At  that  time  the  population  ot  Pennaiflvnnia  was  very  con- 
siderable; and  it  was  foreseen  by  the  proprietary  officers,  that  the 
applications  for  land  at  the  same  instant  would  be  numerous, 
and  that  probably  there  would  in  many  instances  be  more  than 
one  application  for  the  same  tract.  In  order  therefore  to  put  all 
persons  on  an  equal  footing,  (after  satisfying  the  claims  of  the 
officers  who  had  served  in  the  army  raised  by  the  province  of 
Pennsylvania  some  years  before,  and  a  few  special  grants  to 
persons  who  were  entitled  to  particular  favour,)  they  determin- 
ed to  decide  the  preference  of  all  applications  by  a  lottery,  and 
to  ask  no  part  of  the  purchase  money  till  twelve  months  from 
the  date  of  the  application.  At  the  same  time  it  was  expressly 
declared  that  "  those  who  had  settled  plantations,  especially 
"  those  who  had  settled  by  permission  of  thecommandingofficers 
"  to  the  westward,  should  have  a  preference.  But  those  persons 
"  who  had  settled  or  made  what  they  call  improvements  since 
''  the  purchase^  should  not  thereby  acquire  any  advantage.^'' 
Notice  was  given  by  public  advertisement  3d  February  1769 
of  the  terms  on  which  the  office  would  be  opened,  and  the  "pen- 
ing  was  delayed  till  3d  April  1 769  for  the  express  purpose  of 
giving  the  back  inhabitants  sufficient  time  to  bring  in  their 
applications. 

The  counsel  for  the  appellee  have  made  two  points.  1.  That 
the  settler  was  entitled  to  a  preference  by  the  law  of  the  land,  of 
which  the  proprietaries  could  not  deprive  him.  2.  That  he  was 
entitled  to  a  preference  by  a  fair  construction  of  the  terms  on 
which  the  office  was  opened  3d  April  1769. 

Title  by  settlement  has  always  been  favoured,  and  under  pro- 
per restrictions  it  deserves  favour;  but  it  must  not  be  sup])orted 
to  the  destruction  of  all  other  rights.  It  cannot  be  denied,  that 
the  late  proprietaries,  who  were  absolute  owners  of  the  soil, 
had  a  right  to  make  sales,  and  to  grant  rights,  on  what  terms 
thcv  pleased.  If  they  had  thought  proper  to  grant  no  kind  of 
right,  but  upon  payment  of  the  purchase  money,  neither  the  le- 
gislature, nor  the  courts  of  justice  could  have  controlled  them. 
But  as  they  had  been. in  the  habit  of  encotiraging  poor  setders 


OF  PENNSYLVANIA.  389 

who  were  unable  in  the  beginning  to  pay  any  money,  this  prac-  1808. 
tice  at  length  grew  into  a  right,  and  what  had  originated  in  be-  7  ~ 
nevolence  became  the  law  of  the  land.  I  speak  now  of  the  lands  of 
sold  bv  the  proprietaries  prior  to  the  year  1769.  The  List  pur- Buchanak 
chase  made  bv  them  of  the  Indians  was  at  Fort  Stanzvtx  4th  ^' 
November  1768.  In  opening  their  office  for  the  sale  of  these 
lands,  they  determined,  as  has  been  already  mentioned,  to  give 
no  preference  to  persons  who  settled  between  the  4th  No- 
vember 1768  and  the  3d  A/jril  1769.  To  have  given  such  pre- 
ference would  in  a  great  measure  have  defeated  the  equitable 
intention  of  putting  all  persons  on  an  equal  footing.  Nor  could 
there  be  any  just  cause  of  complaint  against  the  regulation 
adopted  by  the  land  office.  Only  a  few  months  intervening  be- 
tween the  purchasL'  and  the  notice  of  the  opening  of  the  office, 
and  those  months  including  the  winter  when  improvements 
cannot  be  carried  on  to  great  extent,  it  was  improbable  that  any 
one  could  have  been  induced  to  go  to  considerable  expense,  un- 
der an  idea  that  he  would  obtain  a  preference  by  settlement. 
But  there  was  a  class  of  settlers  of  another  description,  whose 
case  was  entitled  to  a  different  consideration.  This  leads  me  to 
the  second  pnim,  the  true  construction  of  the  terms  proposed  b)- 
the  land  office.  Although  it  had  alwa\  s  been  the  policy  of  the 
proprietaries  and  the  legislature  to  discourage  settlement  on 
lands  not  purchased  of  the  Indians^  because  it  gave  offence  to 
the  Indians  and  might  produce  war,  yet  when  the  seat  of  war 
between  Great  Britain  and  the  colonies,  and  France  and  the  In- 
dians  allied  to  her,  was  transferred  to  the  Ohio  and  the  country 
between  Pittsburgh  and  the  great  lakes,  it  became  extremely 
convenient  and  almost  necessary  that  there  should  be  a  chain  of 
inhabitants  on  the  military  roads  h  ading  from  the  settled  coun- 
try to  the  western  waters.  For  this  purpose  the  commanding 
officers  of  British  forces  had  been  in  the  habit  of  granting  li- 
cences to  settle,  and  in  many  instances  persons  seated  them- 
selves without  licence,  but  under  an  implied  permission.  These 
people  were  exposed  to  gnat  danger,  and  manv  of  them  were 
cut  off  by  the  savages  in  their  frequent  incursions.  Tiiis  kind 
of  settlement  had  taken  place  chiefly,  but  not  altogether,  in  the 
western  parts  of  the  state.  It  is  to  be  remarked  too  that  many 
of  those  who  had  settled  without  licence,  were  entitled  to  fa- 
vour, because  they  had  relinquished  their  settlements  in  conse- 
quence of  an  act  of  Assembly  passed  in  the  spring  of  the  year 
1 768,  and  a  proclamation  issued  by  the  governor  in  pursuance 


590  CASKS  IN  TllK  SUPREME  COURT 

180R.      of  it.   It  was  thought  reasonalilc  therefore,  that  a  prctercncc 
Lessee     sho'-'ltl  be  given,  on  the  opening  of  the  land  office,  to  "  those 
uf         "  who  had  settled  plantations,  especiallv  those  who  had  settled 
Buchanan"  l^y  permission  of  the  coninianding  officers  to  the  westward." 
M'Clure    H^^^^^^'-'P''op''*^t^'"y^'"'^lt;rstopt  here, there  might  havebeen  some 
ground  for  arguing  that  the  words  of  the  order  included  all  set- 
tiers  prior  to  the  opening  of  the  office,  however  different  their 
cases  or  merits  might  be.  But,  to  take  away  all  doubt,  the  order 
proceeds  to  exclude  certain  se^^/tr*  by  negative  expressions,  viz. 
"  those  who  had  settled,  or  made  what  they  call  improvements 
"  since  the  purchase."    It  is   contended   that  these   negative 
words  are  to  be  restricted  to  those  persons  who  only  made  tri- 
fling improvements,   without  having  settled  plantations.  But 
neither  the  expression,  nor  the  reason  of  the  thing,  justifies  this 
restriction;  the   words  "  those  who  had  settled"  include  all 
kinds  of  settlement;  and  the  rcnson  of  the  order,  as   before 
explained,   certainly  demanded  that  no  preference  should  be 
given  to  any  kind  of  settlement  made  after  the  purchase. 

I  ha\e  hitherto  considered  this  matter  as  if  it  were  a  new 
point.  But  that  is  far  from  being  the  cuse.  It  has  been  under- 
stood ever  since  the  opening  of  the  land  office  in  1 769,  that  those 
persons  who  settled  between  4th  November  1708  and  3d  Aprrl 
1769  were  entitled  to  no  preference.  The  board  of  propertv  de- 
termined so  in  the  case  of  the  very  land  now  in  dispute,  on  the 
26th  March  1 770,  in  a  cause  between  John  Buchanan  and  the 
late  Dr.  William  Smithy  under  whom  the  defendants  claim.  The 
same  principle  was  laid  down  by  Chief  Justice  Chexv  before  the 
revolution,  as  I  am  informed  bv  my  brother  Yeatcn  in  the  case  of 
Kldcrs  Lessee  v.  Campbell,  and  by  Chief  Justice  M''Kean  and 
other  Judges  of  the  Supreme  Court  since  the  revolution,  in  the 
cases  of  Thompsoii's  Lessee  v.  Beeler  and  Sheerer^s  Lessee  \'. 
M'-Cliire;  and  it  is  admitted  that  this  has  been  the  uniform  opi- 
nion and  course  of  decision  at  Nisi  Prius.  Now  although  the 
point  has  never  been  brought  before  this  court  in  bank,  yet 
when  a  principle  affecting  titles  to  land  has  been  supported  for 
near  forty  years  by  repeated  decisions  at  Nisi  Prius^  from 
which  no  appeal  has  been  made,  it  appears  to  be  so  incorporated 
with  the  law  as  to  render  it  dangerous  to  touch  it. 

I  am  of  opinion  on  the  whole  that  the  judgment  of  the  Cir- 
cuit Court  should  ^e  reversed,  and  a  new  trial  ordered. 

Yeates  J.  and  Smith  J.  concurred. 


OF  PENNSYLVAMA.  391 

Brackenridge  J.  I  take  this  to  be  the  first  time  that  the  1808» 
point  has  come  before  the  court  in  bank.  It  had  come  more  than  "Xessee 
once  to  my  knowledge,  before  Judges  of  the  Supreme  Court  at  of 
Nisi  Prius.  I  always  took  it  to  be  simply  the  question,  whether  ^'-''^'I'^^'An 
■■X  prior  settlement  could  be  aifected  by  a  posterior  office  rie/it;  ,» /--  ' 
tor  the  only  distmction  that  could  be  taken  in  the  case  was, 
that  the  usage  under  which  settlement  was  protected,  did  not 
extend  to  that  portion  of  time  which  elapsed  from  the  purchase 
oi  1768  until  the  opening  of  the  office  in  1769:  a  period  of  about 
five  months.  Why  it  should  not,  I  had  never  been  able  to  com- 
preliend.  Is  it  because  the  office  was  not  open  to  take  out  rights 
during  this  period!"  This  ought  to  furnish  the  stronger  reason 
in  support  of  the  usage,  which  had  its  origin  in  the  office  not 
being  open  to  take  out  rights  during  the  proprietary  minority. 
It  was  not  in  the  face  of  any  act  of  Assembly  to  settle;  for  the 
law  prohibited  only  settlements  before  the  purchase^  but  this 
was  after  the  purchase. '\t  was  not  in  the  face  of  the  proclama- 
tion of  the  proprietary  governor,  commanding  settlers  to  re- 
move; for  that  respected  residents  l)efore  the  purchase.  Was  it 
because  that  on  the  opening  of  the  office  in  1769,  the  proprieta- 
ry declared  that  in  reSpect  to  the  locations  drawn  on  that  dav, 
the  third  of  Aprils  no  regard  would  !)e  paid  to  those  who  had 
settled,  and  made  what  they  called  improvements^  since  the 
purchase?  It  could  not  be;  because,  if  the  settlement  could  pro- 
tect against  a  grant,  the  declaration  ex  post  facto^  or  retrospec- 
tive, could  not  take  the  protection  of  the  law  awaj.  It  was  /tw 
sub  srraviore  le^c;  a  law  of  their  own  in  the  usage  thev  had 
countenanced;  sanctioned  bv  the  act  of  Assembly  in  the  year 
1730,  1  St.  Latvs  248.  and  which  had  been  establisht:d  by  the 
decisions  of  courts  and  the  verdicts  of  juries.  But  it  was  not 
their  meaning,  and  they  have  not  made  it;  it  would  involve  an 
inconsistency  in  the  declaration.  I'or  settled  j)lanlations  mado 
before  the  purchase^  are  declared  to  be  respected;  ancrshall  they 
be  understood  to  h:i\  ,  that  settled  plantations  made  since  the 
purchase  shiill  noir  The  first  made  when  there  was  a  law  against 
it,  and  the  second  when  there  was  no  law,  and  no  intimation 
from  any  authority  that  it  was  prohibited.  Sc  ttled  i)lantationH, 
rspeciallij  hi/  the  permission  of  the  commandinrr  officer^  cnrricj 
with  it  the  implication,  that  without  the  permission  of  the 
commanding  officer,  settled  ])lantations  were  to  be  respected. 
"  Settled  or  ivndc  ivhat   then   call    imprcvements^^''   therefore 


392  CASES  IN  THE  SUPREME  COURT 

1808.      means  something  else  than  settled  plantations,  and    inferior 

~~r  to  this. 

Lessee 

of  But  let  it  be  the  meaning  of  the  declaration,  that  no  prefer- 

BucH\NAN  ence  shall  be  given  in  case  of  a  number  drawn,  from  being  cou- 
M<r^  pled  with  a  settled  plantation  made  since  the  purchase,  it  does 

not  necessarily  follow  that  they  shall  be  considered  as  saying 
that  no  settlement  shall  be  respected  as  protecting  against  an 
application.  But  if  they  had  said  it,  the  previous  question  oc- 
curs: could  their  saying  so  supersede  the  usage,  and  the  law  of 
settlement  as  to  settlement  made  before?  If  so,  no  evidence  can 
be  given  of  settlement  made  in  that  isolated  space  of  five 
months.  It  is  an  interval  cut  off  from  the  usage.  How  could 
settlers  be  aware  of  this,  who  during  the  winter  after  the  pur- 
chase, with  great  suffering  and  much  labour,  went  upon  the 
ground  and  established  a  residence?  It  is  argued  that  the  pro- 
prietary not  opening  the  office  and  granting  warrants,  evinced 
that  no  disposition  was  to  be  made  for*  some  time  of  the  lands 
then  lately  purchased  from  the  Indians.  This  is  not  the  fact. 
There  may  not  have  been  what  are  usually  called  warrants,  is- 
sued to  all  applicants,  but  there  w^ere  orders  of  survey;  they 
were  called  special  orders;  and  yet  it  has  never  been  understood, 
nor  do  I  know  even  any  Nisi  Prius  decision,  that  these  special 
orders  could  affect  the  settlement;  I  mean  since  the  doctrine  of 
improvement  came  to  be  recognised  at  Nisi  Prius,  which  I  ad- 
mit was  not  the  case  for  a  period  of  time.  It  is  well  known  that 
from  the  year  1783 — 4-,  when  the  first  Nisi  Prius  Court  was 
held  within  the  purchase  of- 1768  after  the  revolution,  Chief 
Justice  M'-Kean^  and  the  associates  with  him,  overruled  all  evi- 
dence of  improvement;  so  that  settlements  were  swept  away  in- 
discriminately until  about  the  year  1789  or  90,  when  Jutlges 
Smith  and  Teates  came  to  hold  the  Nisi  Prius  Courts,  who  ad- 
mitted evidence  of  improvement,  and  the  whole  doctrine  of  1«  gal 
tenure  as  to  office  right  and  improvement  underwent  a  change; 
Chief  Justice  -/^'^eon  himself  at  subsequent  Nisi  Prius  Courts 
concurring.  I  admit  that  after  this  period  on  a  second  eject- 
ment, M''Clure  V.  Shearer^  evidence  of  an  improvement  made 
between  the  purchase  Novcmher  '\!\kv  1768  and  3d  April  1769 
was  overruled,  as  it  had  been  on  the  first  trial,  to  \xv\  great  sur- 
prise; for  the  ejectment  was  brought  in  consequence  of  the 
change  of  decisions.  It  appeared  to  me  an  inconsistency:  (or 
why  what  is  called  an  application  for  a  survey,  should  have  a 


OF  PENNSYLVANIA.  393 

greater  effect  than  a  special  order,  I  have  not  been  able  to  com-      1808. 
prehend;  or  rather,  to  put  the  point  fairly,  why  settlement  made     t    _~ 
in  the  interval  after  the  purchase  and  before  the  opening  of  the         of 
office  should  not  be  protected.  It  is  the  inconsistency  and  con- Buchanan 
tradiction  in  the  doctrine  of  improvement  with  which  I  am  dis-  - ,  ,,* " 

iVl  ^  Vj  I  U  R  T* 

satisfied.  Either  let  the  principle  be  rejected  altogether,  or  let 
it  apply  generally.  The  principle  after  much  struggle  has  been 
established,  and  it  is  the  partial  application  which  I  resist;  for 
which  I  can  see  no  reason,  and  which  I  take  to  have  originated 
in  temporary  misconception;  or  it  is  my  misunderstanding 
which  vet  exists^ 

Judgment  reversed,  and 
New  Trial  ordered. 


to^^«'  SEPTEMBER  TERM.  I  SOB. 

2i,4-i9  Pittsburfr, 

3"'  y\\  T^  .  T  „  Wednesday, 

is  *^'  Kennedy  against  Lowry.  September 


T 


14th. 

HIS  was  an  action  of  slander,  originally  brought  in  the  In  an  action 

Common  Pleas  of  Craxvford  county,  and  removed  by  ^jj^  ^^.^,1,^,.^ 

habeas  corpus  to  the  Circuit  Court,  where  it  was  tried  before  tion  is  irood 

Veates  J.  in  October   1806.  The  declaration  contained  five  ,,},'!^,'.|,!^\j,j^ 

counts;  four  of  w  hich  charged  that  the  defendant  spoke  &c.  of  ^'>*"  il<  fen- 

and  concerning  the  plaintiff  "  in  .'substance  the  following  false,  ceiiain 

"  scandalous,  and  defamatoiy  words;"  and  one  of  the  counts  ^^■"'»1'*.  "  «« 

laid  words  which  were  not  actionable.  A  verdict  was  found  c,,]!,,^^,^-.  ^5^^. 

for  the  plaintiff,  srenerallu.  with  two  hundred  dollars  damages.  ^^"  »"  *P- 

A  m(jtion  was  then  made  m  arrest  ol  judgment  upon  two  jccisiun  of 

jn-ounds:   First,  That  the  verdict  was  general,  and  one  or  more  t''^'  tJn  cnit 

r    1  1-1  •  1         1  •   I  -11      Court  upon 

ot  the  counts  did  not  contam  words  which  were  actionable:  a  motion  in 

Secondly,  That  four  of  the  counts  did  not  charge  words,  but  ^'"'^^st  of 
the  substance  of  words;  whereas  words  should  be  sptrifically  this  Courtis 

laid,  though  tluv  might  be  proved  substantially.  Thi-  motion '''^'"^"^'.""'"^ 
1    1  1  '   I  •     TT  1-1  ■  III     ■'*'""^  .situa- 

was  overruled  by  his  Honour,  and  judgment  entered  tor  thetion  as  the 

plaintiff;  upon   which   the  defendant  appealed  to  this  court. -''"^f^"'"''''*^ 
IT  L  ri  \  tfiv  •  court,  wticn 

Upon  the  report  ol  the  case  here  by  Judge   Yeatf.s,  it  ap- tiir  motion 

peared  that  no  material  evidence  was  givm  which  applied  par- "^^'"^''*^» 

°  '  *  '  aiui  may 

direct  the 
verdict  antl   judrfmtut  to  i)c  entered  as  he  ntij^htiiavc  done 

Vol..  I.  r,  n 


J94  CASES  IN  riu<:  supreme  court 

1808.      ticularly  to  the  difective  count,  the  fourth,  but  that  all  of  it 

Kenned7^PP^''^'^  ^°  ^^^  ^^^^  counts. 

1'. 
LowRY.  .S".  B.  Foster  for  the  defendant.  As  to  the  first  objection,  the 
point  is  almost  too  plain  for  argument,  that  as  the  verdict  was 
general,  and  one  of  the  counts  bad,  judgment  ought  not  to  have 
been  entered  upon  the  verdict.  There  is  no  pretence  for  sup- 
porting the  fourth  count,  unless  by  the  innuendo;  but  as  it  is  the 
proper  business  of  an  innuendo  to  explain  matter  sufficiently 
expressed  before,  and  not  to  add  to  or  extend  the  words,  ac- 
cording to  The  King  v.  Horn.,  (a)  the  innueyido  cannot  help  the 
declaration.  If  no  evidence  had  been  given  upon  the  bad  count, 
it  might  have  been  in  the  power  of  the  Circuit  Court  to  amend 
the  verdict,  by  entering  it  upon  the  good  counts;  but  some  evi- 
dence was  given,  and  whether  it  had  weight  with  the  jury  or 
not,  it  is  impossible  to  say. 

The  plaintiff  in  the  next  place  ought  to  have  set  out  certain 
words,  notwithstanding  he  is  permitted  to  prove  their  sub- 
stance. For  if  he  is  allowed  to  set  out  the  substance  as  well  as 
to  prove  it,  it  will  not  only  be  a  material  innovation  upon  the 
practice,  but  the  court  cannot  say  upon  the  face  of  the  declara- 
tion whether  the  words  spoken  are  actionable,  and  it  may  tend 
to  surprize  by  rendering  the  charge  too  indefinite  for  the  de- 
fendant to  meet  it.  There  is  no  precedent  of  such  a  declaration 
to  be  found. 

Baldzubi  for  the  plaintiff.  The  words  "  in  substance"  may  at 
all  events  be  considered  as  surplusage;  but  if  not,  still  as  the 
plaintiff  is  allowed  to  prove  the  substance  of  the  words  laid, 
there  can  be  no  reason  against  his  laying  the  substance,  because 
the  same  principle  governs  both  cases;  it  is  the  charge  by  the 
defendant  which  is  material,  and  not  the  very  words,  and  for 
this  there  is  a  direct  precedent  in  1  liic/i.  Prac.  R.  R.  108. 

As  to  the  other  objection,  this  court  may  decide  as  the  Cir- 
cuit Court  ought  to  have  done;  it  stands  in  the  same  situation; 
and  the  case  is  to  be  treated  as  if  it  originated  here.  The  report 
of  the  Judge  shews  that  no  material  evidence  applied  immedi- 
ately to  the  bad  count,  and  that  all  of  it  applied  properly  to  the 
good  counts;  the  verdict  may  therefore  be  amended  by  his 

(a)  Cb«/>.  682. 


OF  PENNSYLVANIA.  39 


notes.  IVilliams  v.  Breedon  (a),  Harrison  v.  Harrison  (^),  Staf-      I8O8. 
ford  V.  Green  (c).  Ke^^;;;^ 

A  W.  Foster  in  reply,  conceded  that  if  this  Court  could  do  Lowrt. 
as  the  Judge  who  tried  the  cause  might  have  done,  the  verdict 
might  be  amended;  but  he  contended  that  this  Court  was  now 
setting  as  a  court  of  error,  and  could  take  no  notice  of  the  evi- 
dence at  the  trial;  that  judgment  below  had  been  actually 
entered,  and  that  the  only  question  was,  whether  it  had  been 
properly  entered  upon  a  general  verdict  on  such  a  narr. 

The  opinion  of  the  Court  was  delivered  by 

TiLGHMAS  C.  J.  This  is  an  appeal  from  the  Circuit  Court 
oi  Crnxvford  coxxnty.  It  is  an  action  of  slander  which  was  tried 
in  October  1806.  A  verdict  was  found  for  the  plaintiff,  and  en- 
tire damages  assessed.  The  defendant  moved  in  arrest  of 
judgment,  the  motion  was  overruled  by  Judge  Teates,  and  from 
his  decision  the  defendant  appealed  to  this  Court. 

The  reasons  urged  in  support  of  the  appeal  are  two.  1.  That 
the  declaration  contains  five  counts,  in  lour  of  which  it  is 
alleged  that  the  defendant  spoke  in  substance  the  words  fol- 
lowing viz. — and  then  the  words  are  inserted.  It  is  contend- 
ed that  the  declaration  is  bad,  because  those  counts  do  not  set 
forth  the  very  words  which  the  defendant  spoke,  without 
which  the  court  cannot  judge  whether  they  are  actionable.  It 
was  formerly  held,  that  unless  the  plaintiff  proved  the  identical 
words  laid  in  the  declaration,  he  failed  in  supporting  his  action; 
but  this  strictness  has  long  been  relaxed;  and  it  is  now  siffi- 
cient,  as  is  conceded  by  the  defendant's  counsel,  if  the  plain- 
tiff proves  that  the  defendant  spoke  words  siibstantially  the 
same   as   those  laid  in  the  declaration,  {d)     This  being   the 

(«)  1  B^>s.  ijr  Put.  329.  (c)  1  Johnson  503. 

(0)  Cro  Jac.  18 J. 

(J)  Up'iii  a  question  connected  witli  lliia  doctrim',  tlic  reporter  has  been 
favoured  by  Jiidpe  Rush  witli  his  opinion,  adopted  by  the  Court  of  Common 
Ple-is,  in  the  following  case  dcci<lcd  in  February  1308. 
"si* 

Tracy        1       Tracy  the   ijlaintifl'  obtained    a   verdict    in    slander   for 

V.  V  forty  five  <Iollars.   Upon  the  trial  a  point  was  rcscrveil  for 

Ha.rk.ins      J   i|,(.  opinion  of  the  court,  whether  words  laid  in  the  stcind 

person,  "  you  are  a  tliiff,"  nro  supported  by  ovid^nre  that  th^v  were  spoke n 


o 


96 


CASLS  IN  THE  SUPREME  COLRT 


1808.      case,  we  see  no  reason  why  it  is  not  sufficient  to  allege  that  the 

r:  7"  defendant  spoke  certain  words  in  substance  as  follows  8ic.  If 

\,  he  does  not  prove  words  of  the  same  substance,  he  fails;  if  he 

LowRY.    does  prove  them,  the  allegata  ^nd  probata  agree;  and  as  to  the 

Court's  judging  whether  the  words  are  actionable,  it  is  easy 

for  them  to  determine  whether  the  substance  laid  in  the  decla- 

in  tlic  third  person,  "  lie  is  a  thiefj"  and  that  point  was  accordingly  argued 
\ipon  a  rule  to  shew  cause  why  there  should  not  be  a  new  trial. 

Rush  President.  In  actions  of  slander,  the  general  rule  is,  that  it  is  suffi- 
cient if  the  plaintift'provesthe  wAj<n«ce  of  the  words,  as  laid  in  his  declara- 
tion. As  an  illustration  of  this  rule,  it  is  expressly  stated  by  Butler,  in  his 
Lavi  of  Nisi  P'iiis  published  in  1772,  that  words  laid  in  the  second  person, 
are  substantially  proved  by  evidence  they  were  spoken  in  tl)e  third  person. 
This  was  clearly  the  law  of  tlv  land,  and  universally  admitted  to  be  .so,  till 
the  \car  1773,  when  Lord  Mansfield  unfortunately  adopted  a  different 
opinion  in  the  case  of  Averillo  v.  Rogers,  the  report  of  which  I  have  not  been 
able  to  find  in  my  researches.  He  is  said  to  have  decided,  that  words  laid 
in  the  third  person  are  not  supported  by  proof  they  were  spoken  in  tlje 
tccnnd  person,  there  being  a  difference,  says  liis  Lordship,  between  words 
in  a  passion  to  a  man's  face,  and  spoken  deliberately  behind  his  back,  the 
first  being  more  excusable.  Esp.  521.  Doubtless  there  is  a  difference  be- 
tween  words  spoken  in  a  passion,  and  deliberately;  but  surely  it  does  not 
follow,  that  because  words  of  slander  are  spoken  to  a  man's  face,  they  were 
spoken  in  a  passion;  and  even  if  it  were  the  case,  it  could  be  considered  in 
no  other  light,  than  a  circumstance  to  extenuate  damages,  and  can  have  no 
tendency  to  prove  they  are  not  substantially  the  same  with  words  spoken 
deliberateh.  The  uttering  words  in  a  passion,  or  deliberately,  is  matter  of 
evidence  to  be  left  to  the  jury.  Whether  words  are  substantially  proved  a.s 
laid,  and  wlietlier  they  are  viore  or  less  excusable,  arc  distinct  things;  the 
former  being  matter  of  law,  the  latter  a  proper  subject  of  inquiry  for  the 
jury. 

The  old  law  which  declared  the  words  are  substantially  proved,  if  spoken 
in  one  ))erson  and  proved  in  another,  appears  to  be  founded  in  reason  and 
good  sense.  The  substantial  ground  of  the  action  is  charging  the  ])laintin 
with  being  a  thief;  and  whether  the  charge  be  conveyed  in  the  second  or 
third  person,  the  crime  is  equally  imputed.  Whether  the  imputation  of  theft 
is  openly  made  to  a  man's  face,  or  at  a  few  yards  distance,  and  out  of  his 
hearing,  the  accusation  is  the  same,  and  the  slander  the  same;  and  the 
damages  should  depend,  not  on  tlie  words  being  spoken  to  tiie  face  of  a 
man,  which  may  be  in  a  passion  or  otherwise,  but  on  the  malice  and  deli- 
beration with  which  they  are  delivered,  and  n«"  requency  of  their  re- 
petition. 

In  our  opinion  the  law  has  been  long  settled  in  Pennsylvania,  agreeably  to 
the  old  edition  of  Buller,-  and  wc  are  happy  on  this  occasion,  that  we  are 
not  obliged  to  entangle  justice  in  nctts  of  law,  or  to  sacrifice  the  dictate.** 
of  common  sense  upon  tiie  altar  of  high  autiiority.  Let  the  rule  be  dis 
charged. 

Vide  Jiex  v.  Berry,  A,  D.  ilT  E.217 


OF  PENNSYLVANIA.  397 

ration  is  actiouable;  if  it  is,  the  declanxtion  will  in  tliat  respcCL      ISOS. 
be  good.  It  was  objected  by  the  delendant's  counsel  that  "<^'~j^ei^nedy' 
precedent  to  support  such  a  mode  of  declaring  could  be  pro-         v. 
duced.  But  one  precedent  has  been  pz'oduccd  from  1  RIc/t.    Lov.kv 
Pract.  B.  R.  108.  where  the  purport  of  words  was  laid,  v.hich 
is  in  effect  the  substance  of  the  words;  and  we  make  no  doubt 
but  that  other  precedents  may  be  found  to  the  same  purpose. 

The  second  Vitvison  of  the  appeal  is  that  the  fourth  count  is 
bad,  the  words  contained  in  it  not  being  actionable;  and  the 
jury  having  assessed  entire  damages,  judgment  could  not 
properly  be  entered  upon  it. 

There  is  no  doubt  of  its  being  a  settled  principle  that  judg- 
ment cannot  be  entered  upon  a  verdict  assessing  entire  damages 
in  slander,  where  one  of  the  counts  is  bad.  But  it  is  equally 
certain,  that  this  principle  has  often  produced  an  arrest  of  judg- 
ment contrary  to  the  merits  of  the  case.  Accordingly,  for  some 
time  past,  the  courts  have  done  all  in  their  power  to  get  rid  of 
it,  so  far  as  is  necessary  to  do  justice  to  the  parties.  The  reason 
of  the  rule  is,  that  as  the  jury  have  blended  in  their  damages  the 
words  that  are  actionable  with  those  that  are  not  actionable,  it 
is  impossible  for  the  court  to  separate  them,  so  as  to  make  the 
defendant  answerable  only  for  the  actionable  words.  But  in 
cases  where  no  material  evidence  has  been  given,  except  what 
went  in  support  of  the  actionable  words,  it  is  to  be  presumed 
that  the  jury,  in  forming  their  verdict,  paid  no  regard  to  any 
words  but  those  which  were  aeiionable.  In  such  cases  the  court, 
to  support  tiie  intent  of  the  jury,  will  direct  the  verdict  to  be 
entered  for  the  plaintiff  on  those  counts  only  which  are  good. 

It  appears  from  the  report  of  the  Judge  who  tried  the  cause 
that  this  was  a  case  of  the  nature  last  mentioned.  There  is 
no  doubt  therefore  that  he  might  on  application  to  him  have  di- 
rected the  verdict  to  be  entered  on  those  counts  to  which  there 
is  no  objection,  if  the  plainiiff's  counsel  had  thought  of  asking 
it;  but  in  the  liurry  of  business  this  was  overlooked.  But  can 
this  court  do  it.''  The  defendant's  counsel  contend  that  we  can- 
not, because  we  are  sitting  as  a  Court  of  Krror,  and  can  take  no 
notice  of  the  evidence,  i'his  would  certainly  be  the  case  were 
wc  acting  on  a  writ  of  error  from  a  Court  of  Common  Pleas. 
But  this  cause  does  not  come  before  us  on  a  writ  of  error,  but 
on  an  appeal  of  a  special  nature.  By  the  act  of  20tli  March 
1799,  4  St.  Lmi's  5fi2.  thf*  Court"  of  AV-v;  Priui'  were  nliolished 


398  CASES  IN  THE  SUPREME  COURT 

1808.      In  all  the  counties  of  the  state,  except  the  county  of /V»7a</(r/- 

K.ENNKDY  pfli(l^  and  instead  of  them  were  established  Circuit  Courts  to 

I-'-         be  held  by  one  or  more  Judges  of  the  Supreme   Court.  The 

.o\\ii\.    Qi5Jj.j,j.  of  this  change  was  to  make  the  administration  of  justice 
as  convenient  as  possible,  bv  bringing  not  only  the  trial,  but  all 
the  proceedings  (the  judgment  included)  to  every  man's  home. 
It  was  also  an  object,  in  case  of  dissatisfaction  with  the  opinion 
of  the  judge  before  whom  the  cause  was  tried,  to  obtain  the 
decision  of  the  Supreme  Court,  with  the  same  ease  and  dispatch 
with  which  it  had  been  before  obtained  after  trials  at  Nisi  Prius; 
and  further,  it  was  thought  desirable  (as  business  in  the  Circuit 
Courts  must  generally  be  dispatched  in  a  hurry;  to  give  an  ap- 
peal from  decisions  on  inotions  for  new  trials,  and  other  lyiotions^ 
upon  which  no  writ  of  error  would  lie.  The  words  of  the  act 
are  as  follows:  "  If  either  of  the  parties  is  dissatisfied  with  the' 
"judgment  or  decision  of  the  said  Circuit  Court  on  any  de- 
"  murrer,  case  stated,  special  verdict,  point  reserved  for  the 
"•  consideration  of  the  court  on  the  trial,  motion  in  arrest  of 
"'■judgment  or  for  a  ncxv  triah  or  to  set  aside  a  judgment,  dis- 
"  continuance,  or  nonpros,  that  then  and  in  such  case  the  party 
■•'  so  dissatisfied  may  appeal  &c."  The  practice  under  this  law 
Tias  been  such  as  to  render  the  proceedings  on  the  appeal  as  little 
expensive  and  as  expeditious  as  possible.  On  an  appeal  in  case 
of  a  motion  for  a  new  trial,  the  Judge  who  tried  the  cause,  re- 
ports the  evidence  from  his  notes,  just  as  if  the  trial  had  been 
at  Nisi  Prius.  Now  upon  the  true  construction  of  this  law,  we 
conceive  that  this  court  is  placed  in  the  same  situation  on  an 
appeal  from  a  Judge's  decision  on  a  motion  in  arrest  of  judg- 
ment, as  the  Judge  himself  stood  when  the  motion  was  made 
before  him;  of  consequence  we  have  a  right  to  examine  the  evi- 
dence, and  to  take  any  steps  for  supporting  the  verdict  which 
he  might  have  taken.     We  have  heard  his  report  of  the  evi- 
dence, from  which  we  think  ourselves  justified  in  directing  that 
the  Circuit  Court  shall  cause  the  verdict  to  be  entered  on  all 
the  counts  but  the  fourth  for  the  plaintiff,  and  on  the  fourth 
count  for  the  defendant;  and  that  then  judgment  be  entered  for 
the  plaintiff  on  that  verdirt. 


OF  PENNSYLVANIA.  399 

1808. 


3»y 

"m-^  Lessee  of  Ross  and  others  against  Cutshall  and      mXl'Iav, 

5    *>*  others.  -  September 

5_*^  Uth. 

''  I  "'HIS  was  an  appeal  from  the  decision  of  his  Honour  Judge  Articles  of 
•*-    Brackenridge  at  a  Circuit  Court  for  Bedford  in  October  beuteTn  the 
1 806.  proprietaries 

It  was  an  ejectment  for  a  tract  of  hmd  to  which  the  defend-  yania'and 
ants  had  a  regular  title  under  the  state  of  Pennsylvcmhi,  commen-  Maryland, 
cing  by  application  in  August  1766;  but  the  plaintiff  claimed  jj(j,„^(jj^,.jg^ 
under  a  title  derived  from  Lord  Baltimore  the  proprietary  of  "f^'if  two 
Marijland^  in  the  following  manner:  On  the  first  of  ^d>ruarij\;\y^l^^^^-^^ 
1760  a  special  warrant  was  issued  to  David  Ross  from  the  land  evidtnce 
office  of  Maryland^  for  "  Five  hundred  acres  of  vacant  land  injnp.  proved 
"  Frederick  county,  between  Little  Meadow  and  Buck  Lodp-e  on  "^  acknow- 
"  PotOTvmac  river  above  Fort  Cumberland^  partly  cultivated.''''    coidiip  to 

On  the  30th  April  1762  a  survey  was  made  for  Ross^  the^^'l^"  '^^^^  of 

certificate  of  which  stated,  that  by  virtue  of  a  renewed  warrant  iieini^  in  the 

of  4th  Februnrij  1762,  two  himdred  and  ninety-five  acres  were  ''•'^"'*'  "^  ^ 

■  ....  slate  paper 

surveyed,  called  the  Dry  Levely  begmning  at  two  white  oaks  *m;11  known 

standing  on  the  top  of  a  hill  on  the  west  side  oiW'iWs  creek ;";.^'^^  .^o"'"*-* 

.  of  justice. 

but  the  survey  said  nothing  of  Little  Meadoxv  and  Buck  Lodge^  A  survey 

or  of  its   being  partly  cultivated;   and  it  was  said  to  be  ten  ""''^'''.'^ ''^' 
.  '  •  lu-vved  wai-- 

miles  from  the  Potoxumac^  and  below  Fort  Cumberland.   A  pa-  rant  issued 

tent  for  this  survey  was  granted  by  Lord  Balt'imorc  to  Ross  in|''"'V  ^Ij.^ 
•^  ^  -'  land  (ilnce 

December  1762.  of  Maryland 

The  land  in  question  being  within  the  state  of  Ptvjn.s7//t;fm/V/,",'|J'j'^'j^^'* 
the  plaintiff's  counsel  offered  in  evidence  upon  the  trial,  a  pa- surveyed  is 
|)er  purporting  to  be  the  original  articles  of  release  &c.  between  J.'^'i,^^^j'}-J^. . 
Lord  Baltimore  and  Thomas  and  R'lchard  Penn  dated  4th  'JuUi  :i  w  j.irant 
1760,  and  certified  to  have  been  at  that  time  acknowledged  •'<  -  j,'ii'v'i760* 
fore  a  master,  and  enrolled  in  the  Chancery  of  England;  the  oh-  reh"it<  s  to 
ject  was  to  shew  that  the  plaintiflF's  tide  was  protected  by  thc[|]^  or'l'in°a*l 
following  proviso  therein:  "  Provided  that  this  release  shall  not  warrani.  and 
"  extend  to  the  right  of  any  grantee  &c.  of  lands  now  in  the  ac- i,V^'hc\M^rrec- 
"  tual  possession  and  occupation  of  such  grantee  Sec.  which  havi  "'<"'  l^'-- 
"  been  at  any  time  and  in  any  manner  heretofore  granted  b\  orp'|.,',,Vrie.^ 
"  under  the  authf)rit\   of  the  said   Lord  Baltimore  or  his  aii-i'i''cs- 
'  rcstors,  but  it  .shall  be  lawful  for  such  tenants  and  occupiers 


4U0  CASLS  LN  TIJE  SUPUEMK  COURl 

180b.  *'  il'^  '!■  lieirs  &c.  to  hold  and  enjoy  the  said  lands,  paying  quit- 

j  j,j;sp^.  "  rents  &c.  to  the  proprietaries  of  Fermsyhania.^^ 

of  The  admission  of  this  deed  was  objf  ctt-d  to  on  the  part  of 

Uoss  ilic  defendant,  because  it  was  not  proved  in  any  mainner  known 

/.         '  to  the  law  o{  Pennsylvania;  hut  the  objection  was  overruled. 

<-  VTSHALL.         rr.,  ,     r  1 

The  defendant  s  counsel  then  urged  that  the  plaintiff's  war- 
rant did  not  call  for  the  lands  surveyed,  and  therefore  did  not 
attach  to  them  until  the  30th  April  1762;  and  further,  that  the 
survey  was  made,  not  under  the  original  warrant,  but  under  a 
distinct  warrant  of  4th  February  1762;  that  consequently,  as 
the  agreement  between  the  proprietaries,  by  which  they  mutu- 
allv  released,  was  dated  4th  July  1 760,  no  title  v/hich  had  not 
vested  at  that  time  was  protected  by  the  agreement,  particularly 
against  a  regular  title  derived  from  the  proprietaries  of  Fenn- 
syhania.  His  Honour  however  charged  the  jury,  that  the  re- 
newed warrant  was  a  continuance  of  the  warrant  of  1760,  and 
that  under  it  a  survey  of  the  lands  called  for  by  the  original 
warrant  was  protected  by  the  articles  of  1760.  The  jury  found 
for  the  plaintiff.  A  motion  for  a  new  trial  was  made  and  over- 
ruled, and  the  defendants  for  all  the  reasons  above  mentioned 
appealed  to  this  court. 

Woods  for  the  appellants,  contended  that  the  articles  of  4th 
juhf  1760  had  been  erroneously  admitted,  without  the  proof 
required  by  the  law  of  Fennsyhania;  Act  of  1715,  1  St,  Lazvs 
109.;  the  certificate  and  enrolment  in  Chancery  being  of  no 
avail.  That  even  in  the  case  of  a  deed  more  than  sixty  years 
old,  this  court  in  The  Lessee  of  Thomas  v.  Horlocker  (a)  had 
thought  some  slight  proof  of  the  hand  writing  of  one  of  the  wit- 
nesses essential  to  make  the  deed  evidence.  He  contended  fur- 
ther that  the  Maryland  w?irr ant  under  which  the  plaintiff  claim- 
ed was  vague  and  uncertain,  and  that  no  right  attached  until 
survey.  But  that  at  all  events  the  land  surveyed  under  the  re- 
newed warrant  was  not  that  called  for  by  the  original  warrant, 
as  nothing  was  said  oi  cultivationyLittle  Meadozi).,or  Buck  Lodge; 
and  the  weight  of  the  evidence  shewed  that  the  land  in  ques- 
tion was  wide  of  these  places.  That  the  articles  between  the 
proprietaries  only  protected  grantees  and  those  claiming  under 

(a)  1  Dull.  14 


OF  PENNSYLVANIA.  401 

them  Avho  were  then  in  actual  possession,  which  was  not  the      1808. 
plaintiff's  case;  and  that  after  Lord /^(7/^i7?z(?re  had  released  to     l^essec 
the  Penns^  he  had  no  right  to  grant  to  the  plaintiff,  even  in  con-         of 
sideration  of  purchase  money  before  paid.  That  the  verdict  was       ivoss 
therefore  against  law  and  evidence,  and  there  should  be  a  new  rT;TSH\i  i 
trial. 

Poss  for  the  appellees  answered  that  the  deed  was  admissible 
upon  either  of  two  grounds;  as  an  ancient  deed,  which  hud 
been  accompanied  by  possession,  Bull.  iV.  F.  255.  4  Co?n.  Dig. 
9i.  B.  2.  12  Fin.  84.  Evidence;  or  as  a  public  state  paper  well 
known  to  courts,  and  requiring  no  proof.  That  in  The  Lessee 
of  Thomas  v.  Horlocker^  possession  had  not  accompanied  the 
deed,  which  was  material.  That  this  deed  had  been  inrolled  in 
Chancery  in  pursuance  of  a  decree  of  that  coui't  to  which  it  re- 
fers. Pemi  V.  Baltimore,  (ci)  That  it  was  found  a  few  years  since 
among  the  papers  of  Dr.  Ross^  and  in  it  were  sundry  questions 
proposed  to  Stephen  Bordltij^  a  gentleman  of  the  law,  concern- 
ing the  effect  of  the  articles  upon  Lord  Baltimore^-  interest, 
and  a  rough  draft  of  an  opinion  in  Bordleifs  hand  writing,  dated 
4th  Fcbruarif  1761.  That  this  was  such  an  account  of  the  (\ii<:d 
as  brought  it  within  the  principle  under  which  ancient  deeds 
arc  admitted,  and  made  it  a  strnngrr  case  than  that  of  The 
Lessee  of  Hijmn  v.  Edivards  (/>)  in  which  the  copy  of  a  deed 
inrolled  in  the  King's  Bench,  and  proved  before  the  Lord 
Mayor  of  London  to  be  a  true  copy,  was  admitted  in  evidence 
by  this  court. 

To  the  other  objections  he  answered,  that  the  original  war- 
rant and  the  payment  of  the  purchase  money  gave  the  plaintiff 
an  equitable  title.  That  the  case  was  not  so  much  against  him 
as  it  would  have  been  imder  a  Pennsylvania  warrant,  which  bv 
its  own  form  required  a  survey  in  six  months  or  was  void,  but 
nevfrihckss  was  allowed  to  be  executed  after  six  months.  That 
Lord  Baltimore  in  practice  demanded  a  renewal  of  liie  warrant 
after  two  years,  which  then  related  back  to  the  original  war- 
rant, and  had  the  same  effect  as  if  there  h:ul  Inen  no  limitation 
to  the  time  of  survey.  That  whether  the  survey  was  on  the 
land  called  for,  was  a  fact  which  the  jury  had  decided;  and  thai 

(a)  1  Vez.  444.  (tA  1  /),//.  1 

Vol.  L  3  E 


T. 
Cl.lSIJALI. 


402  CASES  IN  THE  SUPREME  COURT 

1808.      ''s  Lord  Baltimore  was  bound  to  account  to  the  Ptnns  for  thfc 
I      ^,         purchase  money  received  by  hun,  it  was  obviously  against 
of        equity  for  them  to  vacate  the  grant,  and  to  receive  the  nxoney 
Ross      too.  That  the  articles  of  agreement  should  be  construed  libe- 
rally; and  as  the  final  line  between  the  proprietaries  was  not  run 
initil   1766,  the  agreement  of  17G0  should  be  continued  down 
to  that  time,  and  the  several  agrcenjents  and  the  running  of  the 
final  line  considered  as  one  act.  2  Com.  Dig.  62, 63.  Hoh.  220. 
IJoldfast  V.  Clapham  (r/),  Vaughmi  v.  Atkins.   (/;)  The  defen- 
dant's title  did  not  commence  till  August  1766. 

In  reply  it  was  said  that  the  whole  depended  upon  the  arti- 
cles of  1760.  That  tenants  and  occupiers  of  the  land,  and 
grantees,  were  protected,  but  that  the  plainiift' was  neither  of 
these;  and  as  the  land  surveyed  by  the  v.arrant  of  1762  was  not 
called  for  by  the  warrant  of  1760,  the  tract  in  question  being 
ten  miles  from  the  Potoxvmac  and  below  Fort  Cumber/and^  it  fol- 
lowed that  to  support  this  survey  was  actually  to  allow  Lord 
Bahimcre  to  make  an  entirely  new  grant  after  the  year  1760, 
when  he  had  released  all  his  right  to  the  proprietaries  of  this 
state. 

The  opinion  of  the  court  was  delivered  by 

TiLGiiMAN  C.  J.  This  cause  comes  before  the  court  on  an 
appeal  from  the  Circuit  Court  oi  Bedford  county.  It  was  tried 
lOih  f^f^o^d'r  1806,  and  a  verdict  found  for  the  plaintiff".  The 
defendants  moved  for  a  new  trial,  and  this  motion  being  over- 
ruled, thev  entered  their  appeal  to  this  court. 

The  first  reason  offered  for  a  new  trial  is,  that  the  Judge 
who  tried  the  cause  admitted  in  evidence  certain  articles  of 
agreement  between  Lord  Baltimore  the  proprietary  of  Mary- 
land^ and  Thomafi  and  Richard  Penn  the  proprietaries  oi Penn- 
sifl-oania^  dated  4th  July  1760,  which  were  acknowledged  by 
the  parties  before  a  Master  in  Chancery,  and  enrolled  in  the 
Court  of  Chancery  of  England^  but  which  had  not  been  proved 
or  recorded  in  Pennsylvania.  We  are  of  opinion  that  this  deed 
was  properly  admitted  in  evidence.  It  was  an  ancient  deed  as- 
certaining the  boundaries  of  the  then  provinces  oi  Pennsylva- 

(,-;)  1  /).  cT  E.  600  (i)  5  Burr  2r85. 


OF  PENNSYLVANIA.  403 

riitt-  and  Marylati^,  and  may  be  considered  in  the  light  of  a  state      1808. 
paper,  well  known  to  the  courts  of  justice,  and  which  has  been     Lessee 
admitted  as  evidence  on  former  occasions.  Even  deeds  between  of 

private  persons,  thirty  years  old,  and  attended  with  the  posses-       Ross 
sion  of  the  land  conveyed  by  them,  have  been  received  as  ^ 
evidence  without  further  proof.  But  this  is  a  much  stronger 
case. 

In  order  to  understand  the  next  reason  for  a  new  trial,  it  is 
necessarj^  to  mention  the  plaintiff's  title  as  proved  on  the  trial. 
He  claimed  under  a  warrant  Febriiarif  1st,  1760,  from  Lord 
Baltimore  to  David  Ross^  for  "  Five  hundred  acres  of  vacant 
"  land  in  Frederick  county,  Marijland^  between  Little  Meadow 
"  and  Buck  Lodge  on  Potoxumac  river  above  Fort  Cumberland^ 
"  partly  cultivated."  This  warrant  was  renewed  4th  February 
1762,  and  a  survey  of  two  hundred  and  ninety-five  acres  was 
made  oOth  y4/;ri/ 1762,  being  the  land  in  dispute.  This  land  was 
granted  to  D.  Ross  by  patent  from  Lord  Baltimore  25th  De- 
cember 1762.  We  think  there  is  great  reason  to  suppose  that 
the  land  surveyed  does  not  answer  the  description  in  the  war- 
rant. The  case  depends  upon  the  articles  of  agreement  4th 
July  1760  between  Lord  Baltimore  and  the  Fcnns.  By  these 
articles  the  estates  of  all  persons  were  protected,  who  had,  be- 
fore that  time^  acquired  title  by  any  kind  of  grant  from  Lord 
Baltimore  or  his  ancestors.  The  question  then  is,  had  Lord 
Baltimore  made  a  grant  to  David  Ross  prior  to  4th  July  1760? 
If  the  original  warrant  had  called  for  the  land  afterwards  sur- 
veyed, we  think  that  the  title  of  Ross  would  have  related  to  the 
date  of  that  warrant,  although  the  survey  was  not  made  until 
some  years  after,  provided  the  warrant  had  been  renewed  ac- 
cording to  the  practice  of  the  land  office  of  y]7f/////<//ir/.  But  sup- 
posing as  we  do,  that  the  warrant  did  not  call  lor  the  land  sur- 
veyed, the  grant  to  Ross  cannot  be  said  to  commence  before  the 
lime  of  the  survey  viz.  30th  April  1762,  and  is  therefore  u 
mere  nullity.  We  can  find  nothing  in  the  articles  of  agreement 
between  the  proprietaries,  to  establish  a  title  of  this  kind  to 
land  in  this  state,  against  a  person  who,  like  the  defendants,  af- 
terwards acquired  a  regular  title  from  the  proprietaries  of 
Pennsylvania.  Whether  the  land  in  dispute  was  called  for  by 
the  warrant,  was  a  matter  of  fact  which  tiie  jury  decided  in 
favour  of  the  plaintiff.   But  agreeably  to  our  usual  practice,  wc 


404  CASES  IN  THE  SUPREME  COURT,  &c. 

1808.  think  it  proper  to  order  a  new  trial,  because  it  appears  to  us 

Lessee  ^^^^  ^^^  weight  of  the   evidence  was    strongly  against   the 

of  verdict. 

Ross 
X,.  Judgment  reversed,  and 

CuTSHALL.  New  Trial  ordered. 


CASES 


IN  THE 


SUPREME  COURT 


OF 


PENNSYLVANIA. 


DECEMBER  TERM,  1808. 


Id  405 
8srI48 


Gibson  against  The  Philadelphia  Insurance  Company.      1808. 


T 


H,o  I     r  1  •  Saturday, 

lb  cause  came  betore  the  court  upon  exceptions  to  a  Dicembcr 


report  of  referees.  -*^^''- 

An  agree- 
The  plaintiff  on  the  31st  of  January  1806,  borrowed  of  the  nient  by  a 

1    r       1  1  •  1  1111  1        •  lender  on 

(Jelendants    thirty   thousand    dollars    on    respondentia,  '->pon  ^.^^^^^  .^^^^-^ 

specie,   goods,  wares,  and  merchandises,  laden  or  to  be  laden  '|  '^J*  be 

on  board  the  ship  Triton^  bound  on  a  voyage  from  Nexuca.stle^ ..  avcra-'c 

Delaware^  to  Canton^  and  at  and  from  thence  to  Philadelphia.  "  '»  tbi^ 

The  bond  obligated  the  plainliil",  in  case  the  voyage  should  be  «  ,,'^.j.  ,,g  ,j,^. 

performed,  to  pav  the  i)rincipal  sum,  together  with  583  dollars  '*  ilcrwri- 
r  .'      ,  .  .    .  .        .    1       r  1,        •        "  tiTs  on  a 

15   cents  per  calendar   month;  and  it  contained  the  tollowing ..  policy  of 

clause,  upon  which  the  controversy  arose:   "  It  being  first  de-  "  "isurancc 

iiccordni*'' 
"  clared  to  be  the  mutual  understanding  and  agreement  of  the  "  i„  tin;  i,sa- 

"  parties   to    this  contract,  that  the   lender   shall  be  liable   to "  K"^'*  -V^*^ 

"  average,  and  entitled  to  the  benefit  of  salvage,  m  the  same  »  of  the  city 

"  manner  to  all  intents  and  purposes  as  underwriters  on  a  policy  ''  "*  ,^''.'''V, 

'       '  .  clclphiu, 

''  ot  insurance,  according  to  the  usages  and  practices  oi  the  city  does  ikh 

"  of  PhilacUlhhiay  "^f'^y- 

'  till-  l)()rro\s  - 

cr  U)  calcu- 

liitc  an  average  loss  upon  the  wliolc  aniounl  of  the  money  loaned  and  the  viarine  int-.rest, hu^ 

merely  on  the  cost,  and  cliarpes  of  tl»e  jfoods  on  board,  and  llie  (ni inium  of  insiirince 

Upon  an  insurance  on  floods,  the  underwriters  are  not  liable  lur  iVeijjlit  f<:iid  by  tlit 

owner  of  tlic  pfMuls  during  the  voyapc. 

Vol .  I.  .1  p 


■106 


CASES  IN  THE  SUPREME  COURT 


Ins.  Co. 


1 808.  i  he  friton  was  chartered  from  Thomas  Carberry  and  George 

Gibson  Johnston  of  Nexv  York^  by  Nicklin  and  Gr'jjfith  o{  Philadelphia^ 
T-.  at  a  freight  of  40,000  dollars;  the  freighters  to  pay  the  ship's 
Philadcl.  expenses,  and  to  deduct  them,  together  with  all  other  sums  ad- 
vanced on  the  ship's  account,  out  of  the  freight.  To  these  ex- 
penses and  advances,  the  shipment  of  the  plaintiff  contributed 
at  Canton;  and  on  the  homeward  passage,  his  goods,  consisting 
of  saltpetre  and  teas,  suffered  sea  damage,  the  former  20  yivo  per 
cent,  and  the  latter  2  -po%  per  cent.;  and  the  question,  upon  what 
amount  this  average  should  be  calculated,  was  submitted  to 
arbitration  under  a  rule  of  court. 

The  referees  reported  for  the  plaintiff  5824  dollars  8  cents, 
according  to  the  following  statement: 
Loss  on  Saltpetre,  admitted  to  be 

on  Teas, 
Cost  of  Saltpetre, 

2000  pcculs,  at  S  1 1       S  22,000 
Charges,  per  invoice,  2,174 

Commissions,  3  per  cent.        725  22 

24,899  22 
*  Premium,  9  per  cent. 
Abatement,  2  per  cent. 
Commissions,  \  percent. 

to  cover      S  3,235  47 


20  j%°(j  per  cent. 
2  rixi  Ptr  cent. 


20  T?5°o  on 


28,134  69    gives  S  5,880  15 


•  This  was  the  premium  thurjjccl  in  calcuUitinj^  the  monthly  payment  for 
the  loan,  as  follows: 

Sum  loaned,         -  -         -         §30,000 

1  per  cent,  per  monlh,  12  mos.  3,600 


Premium  of  insui-ance,  9  per  c. 
Abatement,  2  per  c. 
Commissions,  A,  to  cover 

9  percent,  on 


66,^M 


4,366  10 
§37,966  10 


is  g  3,416  94 
Interest,       3,600 


7,016  94 
S  7,016  94  cts.  for  12  montlis  is  g  584  74  cts.  per  month,  nearly  the  sum 
in  t lie  b'lnd 


OF  PENNSYLVANIA.  407 

Amount  brought  forward,  S  5,880  15  1808» 

Cost  of  Teas,  Gibson 

120  qr.  chests  H.  Skin,  §2,192  62  .■^• 

Paper  for  marking,  60  Ins.  Co-. 

Commissions,  3  per  cent.         65  79 

2,259  01 
Premium,  &c.  to  cover,         293  54 

2  y^  on  -  -  2,552  55    gives        S  62  79 

5,942  94 
Deduct  two  per  cent.       118  86 

Amount  of  award,        5,824  08 

To  this  award  the  plaintiff  filed  exceptions:  1.  That  the  ave» 
rage  should  have  been  calculated  on  the  amount  of  the  loan  and 
interest  when  the  Triton  returned,  the  special  clause  in  the 
bond  making  it  a  valued  policy,  and  the  whole  amount  of  the. 
loan,  and  the  marine  interest  at  the  time  of  the  ship's  re- 
turn, being  the  value.  He  therefore  claimed  according  to  the 
following  adjustment. 

Cost  of  Saltpetre,  charges,  and  commissions,  S  24,899  22 
of  Teas,  -  ...  2,259  01 

27,158  23 
20  f'^  per  cent,  on  8  24,899  22  is  g  5,203  94 
2  T*/^  per  cent,  on  S    2,259  01  is  55  45 

8  5,259   39 

Whole  amount  of  loan  and  marine  interest  38,747  dolls.  25  cts. 
Then, 

If  27,1 58  dolls.  23  cts.  lose  5,259dolls.  39  cts. — 38,747  dolls. 
25  cts.  lose  7,503  dolls.  77  cts.  the  amount  claimed. 

2.  That  even  supposing  the  calculation  of  the  referees  to  have 
been  founded  on  a  right  principle,  yet,  as  the  plaintiff  had  paid 
at  Canton  a  portion  of  the  frtigiit  out  and  home,  which  was 
deducted  from  the  money  shi|)ped,  the  referees  should  have 
added  this  to  the  cost  and  charges  of  the  goods,  and  so  settled 
the  average  upon  a  larger  sum. 

By  the  examination  of  tlie  referees  it  appeared  that  the 
plaintiffendeavoured  before  them  to  maintain  his//r.v^exception, 
upon  the  ground  of  a  parol  agreement  before  the  execution  of 
the  bond,  that  the  loan  and  marine  interest  should  compose  the 


403  CASES  IN  Tini  SUPREME  COURT 

1808.      value;  but  tlipy  were  decidedly  of  opinion  thnt  nothing  had  oc- 

"^""77"  curved  to  vary  the  written  contract.  He  also  alleged  before  them, 

7,.         in  support  of  that  which  now  formed  his  fipcond  exception,  that  ;i 

Philadel.   usage  existed  in   riiiladelphia^  in  settling  an  a^'erage  loss  on  a 

ins.  Uo.    p,^]j(.y  on  such  a  voyage  as  this,  to  add  to  the  cost  of  the  goods, 

the  freight  paid  at  Canton;  but  they  Avere  clear  that  no  such 

usage  was  proved,  nor  had  the}'  anj'  evidence  of  it. 

The  exceptions  were  argued  at  March  term  1808  before  the 
whole  court. 

G//>5(j7i  and  Z/?^??-.?!?// for  the  plaintiff.  The  questions  in  this 
case  are,  1.  Whether  the  defendants  are  not  liable  as  upon  a  va- 
lued policy.  2.  Whether,  even  if  their  liability  is  as  upon  an 
open  policy,  the  report  is  not  incorrect. 

It  is  perfectly  clear,  if  this  be  a  valued  policy,  that  the  referees 
have  erred;  and  there  are  two  circumstances  which  shew  it  to 
be  valued:  the  nature  of  the  contract  into  which  the  clause  is 
introduced,  and   the  premium   which   the  plaintiff  has  paid. 
Without  the  special  clause,  the  lender  would  not  be  liable  to 
partial  loss.  2  Marshall  662.  In  case  of  such  a  loss  then,  the 
borrower  would  lose  a  proportion  of  the  money  loaned  and  its 
marine  interest;  for  he  would  be  obliged,  notwithstanding  the 
loss,  to  pay  the  entire  interest  as  well  as  the  loan.   The  clause 
was  Introduced  to  secure  the  borrower  in  this  respect;  it  must 
be  understood  with  reference  to  the  peculiar  contract  of  re- 
spondentia, which  in  the  event  of  a  partial  loss  involves  the 
borrower  in  a  loss  of  principal  and  interest;  and  it  must  be  so 
construed  as  to  cure  the  evil  it  was  intended  to  remedy.  If  the 
principrd  and  interest  do  not  compose  the  value,  then  in  case  of 
a  partial  loss,  the  borrower  must  be  liable  to  the  whole  marine 
interest  as  before:  that  is,  instead  of  receiving  an  average  upon 
what  he  loses,  he  will  only  receive  an  average  upon  a  part  of 
his  loss.   His  whole  loss  is  principal  and  marine  interest;  his 
indemnity  should  be  to  the  same  amount.  This  can  be  done 
onlv  by  treating  the  loan  and  interest  as  a  valued   policy,  and 
giving  him  the  same  proportion  of  the  whole,  that  his  goods 
have  sustained  damage.  As  for  instance:  take  10,000  dollars 
for  the  loan,  and  5,000  for  the  marine  interest;  suppose  the 
money  loaned  to  be  on  board,  and  that  5,000  dollars  are  lost. 
Tnating  it  as  an  open  policy,  he  will  receive  but  about  5,000, 
whereas  his  actual  loss  is  7,500,  since  he  has  that  amount  to 


OF  PENNSYLVANIA.  409 

pay,  without  having  any  representative  of  it  onboard.  Trel-      1808. 
ing  it  as  a  valued  policy,  he  is  excused  50  per  centum  of  tie    q 
loan  and  interest,  which  is  precisely  his  loss.  x>. 

No  light  can  be  thrown  upon  this  contract  b}'  English  dci-  Philadel. 
sions;  for  by  the  law  of  England^  there  is  neither  average  lor  ^°^'  ^' 
salvage  upon  bottomry  and  respondentia,  except  upon  Inst 
India  voyages,  which  are  provided  for  by  Stat.  19  G.  2.  c.l7. 
2  Marshall  662.  But  our  argument  is  justified  by  the  viev  of 
the  subject,  which  is  taken  by  both  Emeri^ron  and  Vd'in. 
2  Etnerig.  54^^.  2  Valin  19.  In  the  case  of  general  average,  on- 
tribution  is  made  upon  the  loan;  and  there  is  no  reason  or  a 
different  rule  in  the  case  of  particular  average.  In  fact  the  erm 
average^  as  applied  to  a  bottomry  contract,  means  a  dedution 
of  the  loan,  and  of  course  of  the  interest. 

But  the  mode  of  calculating  the  premium  shews  an  inteition 
to  ind<-mnify  to  the  whole  extent.  The  interest  was  addd  to 
the  principal,  and  to  that  a  premium  to  cover;  so  that  wehave 
paid  a  premium  upon  principal  and  interest,  which  could»e  for 
no  reason  but  because  an  indemnity  might  be  claimed  y  the 
borrower,  to  that  extent.  A  total  loss  would  have  cleaed  us 
from  the  whole  of  the  debt;  a  partial  loss  should  relieve  u  from 
a  corrcspondentpart  of  the  debt.  It  is  in  truth  nothing  bt  a  fair 
indcmnitv,  as  the  cargo  has  cost  us  the  whole  amount Df  tlic 
loan  and  interest. 

If  however  an  open  policy  is  the  rule,  the  freight  shoud  have 
been  added.  It  is  part  of  the  cost  of  our  goods;  for  itvas  ta- 
ken out  of  the  money  shipped,  and  was  a  charge  payole  be- 
fore the  goods  could  be  laden.  1  MagensZT.  It  is  acccdingl) 
allowed  in  1  Magens  256.  The  trade  to  Canton  from  th>  coun- 
try is  peculiar.  The  freight  is  paid  abroad;  and  if  we  d  not  re- 
cover it  in  case  of  loss,  wc  do  not  receive  an  indemnty.  W« 
should  also  have  had  a  return  premium  for  short  jroperty. 
The  loan  and  interest  amount  to  38,747  dollars  25  ct.;  and  a 
premium  was  paid  upon  the  whole  of  it.  If  the  m  asure  is' 
the  amount  on  ijoard,  then  wc  have  paid  for  mort  than  wj* 
have,  and.a  return  is  indisputably  due.  I 

liinnctj  for  the  defendants.  The  rule  of  this  court  is  perfect 
ly  settled,  that  there  must  be  a  plain  mistake  in  law  or  fact,  ♦ 
vitiate  a  report  of  referees;  so  that  if  the  court  have  a  dout, 
we  arc  entitled  to  the  benefit  of  it.  But  the  case  secirs  too  ploi 
for  doubt.    The  whole  question  depends  upon  thcncaning>f 


410  1  CASKS  IN  THE  SUPREME  COURT 

J 808.      tiE  special  clause,  by  which  the  defendants  are  made  liable  to 

Q  a>'!;ragc,  in  the  same  manner  as  underwriters  on  a  poUcij  of  in- 

X,.         sir.ance^  according  to  the  usages  of  Philadelphia.  To  what  ex- 

Philadel.   teit,  and  in  what  manner  then,  are  underwriters  lialjle?   If  this 

ns.  Lo.    J.QJ  i^j,  ascertained,  the  case  is  at  an  end. 

'inhere  is  no  pretence  for  construing  the  clause  with  reference 
to  he  peculiar  character  of  a  bottomry  contract;  for  the  parties 
ha\!:  introduced  another  contract  as  the  rule,  namely,  the  con- 
trac  of  insurance;  and  such  as  their  liability  would  be  upon  a 
poliy,  such  and  none  other  it  is  upon  this  clause.   Now  there 
is  nithing  more  certain  than  that  every  policy  is  open,  unless  it 
is  expressly  valued.  The  terms  themselves  prove  it.   A  policy 
is  olthe  latter  kind,  only  where  a  value  is  set  upon  the  proper- 
ty, aid  inserted  in  the  contract  in  the  nature  of  liquidated  da- 
mags,  to  save  the  necessity  of  proving  it.  Marshall  190.  If 
the  prties  have  not  agreed  upon  the  value,  the  policy  is  open; 
and  i  remains  for  the  assured  to  shew  the  value  in  case  of  loss. 
Ther  is  certainly  no  value  fixed  in  the  present  contract,  nor  even 
a  surrnamed,  except  30,000  dollars,  which  the  plaintiff  denies 
to  bethe  value.  The  defendants  are  not  to  answer  as  under- 
writer on  a  valued  policy,  but  as  underwriters  on  a  policy  of 
insurace  generally,  which  of  course  means  an  open  policy.  If 
therefre  they  are  to  abate  a  part  of  the  loan  and  its  interest, 
withou  regard  to  the  value  of  the  goods  on  board,  they  are  not 
liable  i  the  same  manner  as  underwriters;  for  as  against  under- 
writer;! where  there  is  no  valuation  ia  the  policy,  it  is  only  the 
cost  ofihe  goods,  with  all  charges  till  on  board,  and  the  premi- 
um  ofinsurance  included,  that  makes  the  value  insured.  1 
Magen\^7.  But  take  it  to  be  a  valued  policy.  What  is  the  va- 
lue? If  it  is  merely  the  30,000  dollars,  the  plaintiff  gets  too 
much,  a  the  referees  have  settled  the  average  upon  a  larger 
amount.  If  it  goes  beyond  this,  it  includes  the  marine  interest; 
and  ther  it  becomes  a  fluctuating  value  from  30,000  up  to 
38,747,  iccording  to  the  lapse  of  time,  and  is  one  tiling  if  the 
loss  happens  today,  and   another  tomorrow,  which  is  a  sole- 
cism. TVis  however  is  not  the  greatest  objection  to  it.   The 
narine  interest  is  nothing  more  than  a  compensation  for  the 
oan  and  the  risk;  it  is  the  same  as  common  interest,  except  as 
o  its  amount,  which  is  left  by  law  to  the  regulation  of  the 
•arties.  If  the  plaintiff  may  make  this  interest  a  part  of  the 
alue,  there  is  nothing  in  a  common  case  ofinsurance  to  pre- 
'jnt  his  clarging  the  underwriters  with  the  interest  he  pays  for 


OF  PENNSYLVANIA.  1  411 

his  shipment,  or  with  the  interest  he  loses  by  its  being  a  dead     1808. 
capital  while  on  board.    This  is  at  least  a  new  doctrine;  but  its  Gj^soj^ 
novelty  is  not  the  worst  part  of  it;  its  effect,  upon  the  present       v. 
case,  is  to  involve  both  parties  in  pjreat  absurdity.    It  converts  Phihulel. 
this  contract  into  a  wager  pollcv;  for  if  the  interest  is  insured,     "^" 
it  is  clearly  a  wager.  1  Marsh.  94.   Now  there  can  be  no  partial 
loss  upon  a  wager.   If  the  lender  had  caused  himselt  to  be  insu- 
red, he  could  not  have  recovered  a  partial  loss  upon  more  than 
the  money  lent;  the  interest  not  being  insurable  at  all,  if  wager 
policies  are  void  in  this  state,  and  not  being  insurable  against 
partial  loss,  even  if  such  policies  are  valid-  Such  an  indemnity 
is  contrary  to  the  nature  of  a  wager;  and  yet  it  is  the  plaintiff's 
argument  that  the  contract  provides  for  it,  contrary  to  law,  and 
-against  the  spirit  of  the  contract  itself. 

It  is  said  that  the  rule  for  calculating  general  and  particular 
average  upon  respondentia  must  be  the  same.  There  is  great 
reason  in  this  position;  but  it  is  against  the  plaintiff.  His  argu- 
ment is  that  the  instant  a  partial  loss  occurs,  the  marine  inte- 
rest is  extinguished  upon  so  much  of  the  loan,  from  the  very 
commencement  of  the  contract,  though  the  loss  may  have  hap- 
pened twelve  months  after  it.  ^^'hat  do  the  French  writers  say 
upon  this  subject?  Whatever  may  be  the  law  oi England^  which 
seems  unsettled,  the  French  law  expressly  subjects  bottomry 
contracts  to  the  payment  of  gross  average.  Orel,  clc  la  Marine 
1681.  Art.  IG.  Fall /I,  in  his  commentary  upon  this  article, 
says  that  contribution  shall  not  diminish  the  marine  interest. 
"  La  contribution  au  rachat  ne  s'impute  pas,  ipsojure^  sur  le 
*'  capital  donne  a  la  grosse,  a  Veffet  de  dimimwr  le  profit  mari- 
"  time;  I'imputaiion  ne  se  fait  que  dujour  que  le  donneur  a  Ht 
"  mis  en  demeure  de  contribuer.^''  That  is,  the  marine  interest 
runs  on  until  the  lender  becomes  liable  to  make  the  payment, 
which  in  the  present  case  was  upon  the  return  of  the  TritOm 
and  the  contriljution  is  then  made  only  in  proportion  to  the  ca- 
pital loaned.  To  the  same  point  are  Pothicr^  Trait,  du  Pnt  a  la 
Grosse  209.  and  2  Lmvrig.  509.  The  case  of  Pons  against  David 
&  Isnard^  decided  in  the  admiralty  of  Marseilles  in  1750,  and 
reported  in  2  Emerigon  410.  is  completely  in  point  to  the  pre- 
sent case.  The  defendants  there  claimed  that  the  lender  should 
contribute  to  gross  average,  the  same  proportion  of  the  loan 
and  its  interest,  which  his  part  of  the  average  bore  to  the  capital 
loaned;  but  the  court  refused,  and  settled  the  average  upon  th«- 
capital  onlv. 


4r2  CASES  IN  THE  SUPREME  COURT 

1808.  The  second  exception  is  equally  untenable.  Usage  is  out  of 
GiBsov  ^^^  case;  there  has  not  been  the  least  evidence  of  it.  The  ques- 
V.  tion  therefore  is  a  naked  one:  whether  an  underwriter  on  goods 
Philadel.  is  answerable  for  any  freight  which  the  owner  has  paid  during 
ins.  K^o.  jj^g  voyage;  or,  in  other  words,  whether  freight  paid  in  advance, 
or  pro  rata^  is  part  of  the  cost  and  charges  of  the  goods.  There 
is  no  case  to  be  found  that  coimtenances  such  a  doctrine;  no 
settlement  of  an  average  in  which  it  has  ever  been  included. 
The  charges  allowed  are  those  which  are  incurred  to  put  the 
goods  on  board;  freight  is  incurred  afterwards,  and  in  the  event 
of  a  total  loss  is  not  due  at  all.  The  claim  is  therefore  to  make 
the  underwriters  pay  on  a  partial  loss,  what  they  could  not  be 
charged  with  at  all  if  the  loss  were  total.  In  the  adjustment  set 
out  in  1  Magcns  256,  the  freight  was  not  allowed;  it  was  mere- 
ly used  in  the  calculation  to  ascertain  the  net  proceeds  of  the 
damaged  goods,  and  so  it  always  is.  As  to  short  property,  in  ad- 
dition to  its  not  having  been  made  a  point  before  the  referees, 
a  mere  statement  of  the  demand  puts  an  end  to  the  difficulty. 
The  lender,  in  the  first  place,  has  run  the  risk  of  losing  the 
whole  principal  and  interest,  which  entitles  him  to  the  whole. 
But  in  the  next  place,  what  does  the  property  on  board  fall 
short  of?  The  sum  insured?  AVhat  is  insured?  Nothing  but  a 
partial  loss  on  the  proceeds  of  the  loan;  The  proceeds  of  the 
loan  were  on  board,  the  risk  has  been  run,  and  the  loss  has  hap- 
pened. The  borrower  has  therefore  the  benefit  of  his  whole  in- 
surance, and  the  lender  is  entitled  to  the  benefit  of  his  whole 
premium. 

The  cause  being  argued  upon  the  last  day  of  March  term, 
it  was  held  under  advisement  until  this  day,  when 

TiLGHMAN  C.  J.  delivered  the  opinion  of  the  court. 

In  this  case  exceptions  have  been  filed  to  the  award  of  re- 
ferees. 

The  plaintiff  borrowed  of  the  defendants  thirty  thousand 
dollars  on  respondentia,  on  si)ecie,  goods,  wares,  and  merchan- 
dises, laden  on  board  the  sliip  Triton^  bound  on  a  voyage  from 
Newcastle  in  the  river  Delaware  to  Canton  in  China.,  and  from 
thence  to  Philadelphia.  The  bond,  which  is  drawn  in  the  usual 
form  except  a  memorandum  at  the  end  of  it,  obliges  the  plain- 
tiff, in  case  the  voyage  is  performed,  to  pay  the  defendants  the 
sum  of  thirtv  thousand  dollars,  and  also  the  sum  of  five  hun 


OF  PENNSYLVANIA-.  4IS 

dred  and  eighty  thrte  dollars  fifteen  cents  per  month,  for  the      1808. 
whole  time  that  the  voyage  should  continue.  The  memoran-     Qjbsqjj 
dum  on  which  the  dispute  has  arisen,  is  as  follows — "  It  being         v, 
"  first  declared  to  be  the  mutual  understanding  and  agreement   Phihulel. 
"  of  the  parties  to  this  contract,  that  the  lenders  shall  be  liable  °' 

"  to  average,  and  entitled  to  the  benefit  of  salvage,  in  the  same 
"•  manner  to  all  intents  and  purposes,  as  underwriters  on  a  poli- 
"  cy  of  insurance  according  to  the  usages  and  practices  of  the 
"  city  o{  Philadelphia:' 

The  ship  arrived  in  safety  at  Canton^  where  she  took  in  a 
cargo  for  Philadelphia;  and  on  her  homeward  voyage  the  goods 
of  the  plaintiff  were  damaged  to  the  amount  of  about  one-fifth 
of  their  value.  On  the  settlement  of  this  loss,  a  dilference  arose 
between  the  plaintitT  and  the  defendants,  which  was  submitted 
to  arbitrators.  There  was  no  dispute  as  to  the  fact  of  loss,  bat 
the  question  was  on  what  amount  the  average  should  be  calcu- 
lated. The  plaintiff  first  contended  before  the  referees,  that  in 
consequence  of  some  communications  between  him  and  the  de- 
fendants prior  to  the  execution  of  the  bond,  the  average  should 
be  computed  on  the  amount  of  the  loan  and  interest.  The  re- 
ferees were  of  opinion  that  there  was  no  proof  of  any  commu- 
nication which  could  have  that  effect,  or  any  other  effect  alter- 
ing the  contract  expressed  in  the  bond.  The  plaintiff  next  con- 
tended that  the  insurance  must  be  considered  as  having  been 
made  on  aD«///<Y/ policy,  to  the  amountof  thirty-eight  thousand 
seven  hundred  and  forty-seven  dollars  twenty-five  cents,  and 
that  he  was  entitled  to  have  the  average  of  twenty  per  cent,  cal- 
culated on  that  sum;  and  he  contended  in  the  last  place,  that 
even  supposing  the  average  to  be  calculated  on  an  open  policy, 
he  was  entitled  to  include  a  sum  of  money  paid  at  Canton  on 
account  of  freight,  as  part  of  the  cost  and  charges  of  the  goods. 
On  both  these  points  the  referees  decided  against  him.  Their 
opinion  was  that  the  average  should  Ijc  com])uted  on  the  prime; 
tost  and  charges  of  the  goods  and  premium  of  insurance,  ex 
clufling  the  freight. 

This  contract,  partaking  of  the  nature  i)oth  of  respondentia 
and  insurance,  appears  to  have  been  lately  introduced  into  this 
city.  It  is  to  be  regretted  that  it  had  not  been  expressed  in 
such  precise  terms,  as  to  leave  no  room  for  that  great  difference 
of  opinion  which  the  parties  entertain  concerniiig  it.  The  court 
must  decide  upon  the  matter  as  it  appears  on  the  face  of  the 

V'oj..  I.  •;  (i 


414  CASES  IN  TtlE  SUPREME  COURT 

1808.      liond;  for  tlic  referees  determined  that  there  was  no  proof  of 
■"T;  any  extraneous  facts  to  alter  the  bond,  and  nothinc:  has  been 

,,  shewn  to  us  which  could  iniUice  us  to  say  that  they  were  wrong 

Philadel.  in  that  dfttrmination.  Then  what  says  the  bond?  That  the 
Ins.  Co.  itnder  shall  be  liable  to  average  in  the  same  manner  to  all  in- 
tents and  purposes  as  underwriters  on  a  policy  of  insurance,  ac- 
cording to  the  usages  and  practices  of  the  city  of  Philaddph'ia. 
What  is  the  law,  usage,  and  practice,  in  case  of  a  loss  of  this 
kind?  The  plaintiff  has  laid  before  us  the  calculation  of  a  loss 
on  a  valued  policy  by  a  very  intelligent  broker,  Mr.  Clement 
Biddle;  but  there  is  no  occasion  to  examine  the  correctness  of 
it,  because  there  is  nothing  in  the  bond  which  authorizes  us  to 
consider  this  as  a  valued  policy.  All  policies  are  considered  as 
open  unless  the  contrary  is  expressed.  Then  taking  it  as  an 
open  policy,  the  average  is  to  be  calculated  on  the  cost  and 
charges  of  the  goods  and  the  premium  of  insurance.  There  is 
no  ground  for  taking  into  consideration  the  marine  interest  , 
which  the  plaintiffs  paid  for  the  loan;  as  well  might  the  assured, 
in  common  cases  of  insurance,  charge  the  underwriters  with 
usurious  interest  paid  by  him  for  the  money  with  which  he 
purchased  the  goods.  This  interest  is  not  the  cost  of  the  goods^ 
but  the  cost  of  the  moneij  with  which  the  insurer  has  nothing 
to  do. 

The  case  then  is  narrov/ed  to  this  point,  whether  the  plain- 
tiff had  a  right  to  include  the  freight^  as  part  of  the  cost  and 
charges  of  the  cargo.  Freight  in  its  nature  seems  distinct  from 
those  costs  and  charges.  It  is  the  price  paid  for  carriage  of  the 
goods;  and  in  case  of  a  total  loss,  it  is  not  payable  at  all.  This 
is  not  a  new  point.  It  received  an  express  decision  in  Baillie  v. 
Moudigliaui,  (Parke  53.  25  Geo.  o.)  where  it  was  the  unani- 
mous opinion  of  the  court,  that  in  an  insurance  on  goods  the 
underwriters  are  not  liable  for  freight  paid  by  the  owner  of  the 
goods, 'because  they  have  not  engaged  to  indemnify  the  in- 
sured against  it.  That  case  is  not  an  authority  here;  but  it  is 
eniided  to  that  consideration  which  we  pay  to  the  respectable 
courts  of  all  nations,  when  they  found  their  decisions  not  on 
municipal  regulations,  but  on  the  general  principles  of  mari- 
time law.  It  appears  to  me  therefore  that  the  referees  were 
right  in  excluding  the  freight. 

My  opinion  on  the  whole  is  that  the  exceptions  are  notgoodj^ 
and  that  the  asvard  be  confirmed. 


OF  PENNSYLVANIA.  415 

Smith  J.    My  opinion  is  that  the  report  be  confirmed,  be-      1808. 

cause  I  cannot  discover  in  it  anv  clear  mistake  either  in  fact  or  ^ 

^  viIBSON 

in  lav,-.  V. 

Award  confmiied.  Philadel. 

Ins.  Co. 


Dub 0 SO  against  The  Guardians  of  the  Poor. 


lb  415 
8s>340, 


Saturday, 

In  Error.  Dec.  24th. 


THE  record  of  a  judgment  against  Dubosq^  at  the  suit  of  Ifthejudg'. 
the  defendants  m  error,  was  brought  by  cerf/orffr?  tromj^,s^i(.e  of  the 
before  an  alderman,  to  the  common  pleas  oi  PhiladelpliJa  coun-l»-':icc  is  :if- 

,     .•         ^,     ,    .  •  •  ,     ,-  1      hrmcdm  the 

ty;  and  no  exceptions  being  filed  in  writing  on  or  betore  the^-ommon 

first  argument  day  after  the  return,  the  judgment  was  affirmed l^lt^-is,  for 

•  1  r    1  T  111      ^\'"'lt  01  ex- 

of  course,  agreeably  to  a  rule  ot  that  court.  It  was  then  brought  ^.^.p^jons  in 
by  writ  of  error  to  this  court,  and  errors  assigned.  tuvio,  aprce- 

-'  ably  to  the 

niles  of  tliat 

S.  Levy.ior  the  plaintiff  in  error,  was  now  proceeding  to *^"^"'"*' ^•"s 

•"  *  I  vj        court  NVill 

open  the  ciTors,  when  not  hear  nb- 

jeclions  to  it. 

JViiU'i/is  produced  the  rule  of  the  common  pleas,  and  asked 
whether  the  court  would  hear  an  argument. 

PerCuRiA.M.  The  court  of  common  pleas  has  been  much 
harassed  by  ccrtioraris  to  justices  of  the  peace,  and  it  has  a 
perfect  right,  for  the  despatch  of  business,  to  make  such  a  rule, 
and  to  enforce  it.  After  the  judgment  has  been  affirmed  in  con- 
sequence of  the  party's  neglect,  we  will  not  suffer  him  to  dis- 
turb it  here. 

Judgment  affirmed. 


416  CASES  IN  THE  SUPREME  COURT 

1808.  jh  41B 

■- 4b  Yi'i 

4b  Vi& 
13SI410 


SaturJ,7y,  Emerick  as^aiiist  Harris.  '^1  452 

Dcc.24lh.  ^  _»9_*n' 


This  court     ^  I  "'HIS  was  a  certiorari  to  the  alderman's  court  of  Philadel- 

ub  aiit  1011-     X    pJi'ia,  The  record  shewed  an  action   of  debt  by  Emerick 
ty  to  (liciile  ....  . 

upontlic        against  II(irtis,,'\n  which  tl)e  defendant  had.  suffered  judgment 

ali'tv  of  an"  *°  S°  ^X  ^•^f'^'-i^^  f"*"  ^  !'•  6**  0^*  '^"<^  ^he  costs;  and  the  only  ob- 
act  of  the  jection  to  the  proceeding  was,  that  the  alderman's  court  had  no 
ture^  *"^*^ '*"  jurisdiction  in  causes  above  10/. 

The  20/.  Before  the  adoption  of  the  present  constitution  of  Pennsylva- 
constitution-  "'^  '"^  ^  7^0-,  justices  of  the  peace,  by  an  act  passed  the  5th  April 
^>1  1785,  2  St.  Laws^  304.  had  jurisdiction  in  cases  of  debt  or  de- 

mand not  exceeding  10/.;  but  by  a  law  passed  the  19th  April 
1794,  3  St.  Lows^  736.  that  jurisdiction  was  increased,  in  cases 
of  the  same  kind,  to  an  amount  not  exceeding  20/.  This  law 
directed,  that  if  any  person  should  bring  suit  in  other  manner 
than  was  provided  by  the  act,  and  should  not  recover  more 
than  20/.  he  should  not  have  judgment  for  any  costs;  at  the 
same  time  it  provided,  that  either  plaintiff  or  defendant  in  a 
suit  brought  before  a  justice  for  a  demand  above  10/.  might 
before  judgment  elect  to  have  the  cause  tried  in  the  common 
pleas,  the  defendant,  if  he  was  the  party  electing,  giving  secu- 
rity in  the  nature  of  special  bail,  or  to  enter  a  common  appear- 
ance, accordingly  as  the  cause  originated  by  capias  or  sum- 
mons; and  it  entitled  either  party,  even  after  judgment,  if  the 
amount  exceeded  5/.  to  appeal  to  the  common  pleas,  upon  giv- 
ing security  to  answer  costs,  to  prosecute  the  appeal  with  effect, 
&c.  The  same  jurisdiction,  thus  modified,  was  given  to  the 
alderman's  court,  which  proceeded  without  the  intervention  of 
ajur}'. 

The  case  turned  upon  the  validity  of  this  law,  which  was  al- 
leged to  be  unconstitutional  and  void,  !)ecause  it  violated  the 
6th  section  of  the  9th  article  of  the  constitution,  which  says 
"  that  trial  by  jury  shall  be  as  heretofore,  and  the  right  there- 
"  of  remain  inviolate." 

It  was  argued  at  September  and  Decemher  terms  1803,  by 
M'-Keaii  (attorney  general),  Ingersoll^  and  E.Tilghman^  for  the 
defendant,  and  by  Hophinaon  and  Rmvle^  for  the  plaintiff. 


OF  PENNSYLVANIA.  417 

The  arguments  for  the  plaintiff,  were  in  substance,  1.  That      1808. 
this  court  had  no  authority  to  declare  an  act  of  the  legislature  to  £mekick 
be  unconstitutional.  That  such  a  power  was  not  expressly  given         v. 
to  the  judiciary  by  the  constitution;  and  without  it,  being  at   Harris. 
most  but  a  coordinate  branch  of  the  government,  they  could 
not  defeat  or  control  the  legislature,  by  vacating  laws,  of  the 
constitutionality  of  which  the  one  had  no  better  right  to  judge 
than  the  other.  That  in   fact  neither  had  the  right;  the  people 
being  the  safeguard  of  the  constitution,  and  holding  in  their 
hands  the  remedy  for  all  injuries  to  that  compact,  in  the  power 
of  dismissing  bad  servants.  That  if  the  court  took  the  power 
by  implication  from  either  their  oath  of  office,  or  the  nature 
of  their  duties,  so  might  the  common  pleas,  the  alderman's 
court,  justices  of  the  peace,  and  even  many  executive  officers, 
until  at  last  there  would  be  no  person  too  illiterate  or  too  hum- 
ble to  correct  the  legislature  of  the  state,  and  to  arrest  the  exe- 
cution of  the  laws.  2.  That  the  law  of  19th  April  1794  was  not 
contrary  to  the  constitution.    That  the  legislatiu-e  had  an  ex- 
press right  bv  that  instrument,  to  organize  new  judicial  tribu- 
nals; and  that  so  long  as  the  trial  by  jury  was  preserved  through 
an  appeal,  the  preliminary  modes  of  obtaining  it  might  be  va- 
ried at  their  will  and  pleasure.  That  to  deny  them  this  right, 
was  to  prohibit  the  minutest  change  in  any  of  the  formal  pro- 
cess and  rules  by  which  jury  trial  was  obtained  and  regulated. 
That  by  this  law  the  trial  was  open  to  the  parties  at  their  own 
election,  or  by  appeal;  and  it  rested  with  them,  whether  to  re- 
main before  the  magistrate,  or  to  proceed  in  the  old  way.  That 
the  only  difficulty  was  about  the  costs;  and  that  therefore  the 
question  of  constitutionality  came  to  this,  whether  the  legis- 
lature had  a  right  to  abridge,  or  to  abolish  costs,  in  cases  where- 
in they  were  recoverable  before  the  constitution  was  adopted. 
That  this  was  almost  too  plain  for  argument,  and  was  a  matter 
upon  which  a  multitude  of  laws  had  been  made  since  that  time, 
without  a  suggestion  of  their  improprietv.   That  it  was  always 
a  question  of  policy  for  the  government,  and  not  of  right  in  the 
party;  some  j)arties  paying  none,  others  paying  double  or  treble 
costs  according  to  the  nature  of  the  case;  a  projjortion  some- 
times  existing   between    them    and    the    damages    recovered, 
sometimes  not;  the  whole   being  an   arbitrary  system,  ol  (he 
change  of  which,  or  even  its  extinction,  no  one  had  a  right  to 
complain. 


418  CASES  IN  THE  SUPREME  COURT 

1 808.  1^0*"  ^^ic  defendant  the  arguments  were,  1  ■  That  the  constitu- 

TT'JI'Tir^Jt)"  was  the  paramount  law  of  the  hind;  and  that  all  acts  of  the 
T.  legislature  which  impugned  its  provisions,  were  not  merely 
Harris,  voidable,  but  absolutelyvoid;  they  wei^  not  laws  at  all,  as  they 
wanted  the  vital  efficacy  of  a  law.  That  if  an  act,  deriving  its 
authority  from  a  supposed  law,  should  come  before  the  cpurt, 
there  could  be  no  doubt  of  the  court's  power  to  defeat  the  act, 
if  the  law  was  found  not  to  exist;  which  was  precisely  the  case 
where  an  act  was  founded  upon  a  law  repugnant  to  the  consti- 
tution. That  the  question  was  between  conflicting  laws,  one  of 
which  must  always  stand,  and  the  other  give  way;  and  the 
whole  point  was,  whether  the  court,  who  could  execute  but  one 
of  the  laws,  had  aright  to  decide  whether  there  was  a  conflict, 
and  which  should  give  way.  That  it  was  too  plain  for  debate, 
that  when  there  is  a  paramount  law  by  which  the  court  is  at  all 
events  bound,  it  must  have  a  right  to  say  whether  a  law,  Avhich 
has  no  authority  upon  them  except  it  conform  to  the  para- 
mount law,  does  or  does  not  conform  to  it.  That  the  judiciary 
owe  a  duty  to  the  constitution  above  that  which  they  owe  to 
the  legislature;  and  where  the  one  says  one  thing  and  the 
other  a  contrary  thing,  they  must  adhere  to  the  first,  which  in 
eff"ect  is  deciding  against  the  second.  That  finally  the  right  of 
the  court  had  been  repeatedly  affirmed  by  judicial  decisions;  as 
in  Vanhome  v.  Dor  ranee  («),  IlaijburrCs  case  (/>>),  Hijlton  v. 
The  United  States  (c),  and  many  others  in  our  own  state.  2. 
That  the  constitution,  by  directing  that  trial  by  jury  should  be 
as  heretofore,  and  the  right  thereof  remain  inviolate,  had  inter- 
dicted the  legislature  from  abolishing  or  abridging  this  right  in 
any  case,  in  which  it  had  existed  before  the  constitution.  That 
a  prohibition  to  do  this  directly,  was  a  prohibition  to  do  it  in- 
directly, cither  by  deferring  the  decision  of  a  jury  until  one, 
two,  or  more  previous  stages  of  the  cause  had  been  passed,  or 
by  clogging  the  resort  to  that  tribunal  by  penalties  of  any  kind, 
cither  forfeiture  of  costs,  security  upon  appeal,  or  delay.  That 
the  power  to  obstruct  at  all,  implied  a  power  to  increase  the 
obstructions,  until  the  object  became  unattainable;  and  that  the 
instant  the  enjoyment  of  the  right  was  to  be  purchased  by  sa- 
crifices unknown  before  the  constitution,  the  right  was  violated, 
and  ceased  to  exist  as  before.  That  the  question  was  not  whe- 

(a)  3  Ball  304.         (b)  2  Ball.  409.         (c)  3  Ball.  175. 


OF  PENNSYLVANIA.  '  419 

ther  the  legislature  had  a  right  to  take  away  costs  altogether,      18O8. 
but  whether  they  could  make  the  loss  of  them  a  penalty  ibr  de-  ^^^^J^Tck^ 
manding  a  right  secured  by  the  constitution.  That  all  encroach-         x,, 
ments  upon  constitutional  rights  were  in  the  first  instance  mi-    Harris. 
Bute;  that  they  increased  in  magnitude,  as  the  boldness  of  the 
usurping  power  increased  by  the   acquiescence  of  the  citizen; 
and  that  therefore  it  was  the  duty  of  the  judiciary  to  detect  and 
resist  the  usurpation  at  the  outset. 

Cur.  adv.  vult. 

On  this  day  the  judges  delivered  their  opinions. 

Yeates  J.  On  the  first  question  argued  in  this  case,  I  have 
no  doubt  whatever,  that  this  court  is  vested  with  the  legitimate 
power  of  deciding  on  the  constitutionality  of  an  act  of  the  legis- 
lature. The  judicial  authority  of  this  state  comprehends  the 
exercise  of  this  right  as  well  on  principle  as  precedent. 

The  constitution,  being  the  act  of  the  people,  and  the  com- 
pact according  to  which  they  have  agreed  with  each  other  that 
the  government  which  they  have  established  shall  be  adminis- 
tered, is  a  law  to  the  government;  and  a  sacred  reverence  for  it 
is  an  indispensable  requisite  in  the  character  and  conduct  of 
every  public  agent.    1  Tuck.  app.  to  BUuk.  Comm.  29. 

It  cannot  l)e  denied  that  an  anxious  desire  is  expressed  by  the 
people  in  the  formation  of  die  constitution  of  the  United  Slates^ 
and  of  this  state,  to  keep  the  powers  of  the  legislative,  execu- 
tive, and  judicial  departments,  distinct  and  independent  of 
each  other.  They  are  separate  and  coordinate  branches  of 
the  government,  and  are  expressly  recognised  as  such,  by  a 
special  enumeration  of  their  respective  powers  and  rights.  By 
the  Gth  article  of  the  constitution  of  the  United  Stales,^'-  the 
"  senators  and  representatives  in  congress,  and  the  members  of 
*'  the  several  state  legislatures,  ;md  all  executive  and  judicial 
"  officers  both  of  the  United  State/  and  of  the  several  states, shall 
"  be  bound  by  oath  or  aflirmation  to  support  the  constitution." 
This  is  further  enforced  by  a  law  of  the  United  States  passed 
on  the  Ist  yunc  1789.  1  U.  S.  Laws  26.  By  the  8th  article  of 
the  constitution  of  diis  state,  "  members  of  the  general  asscm- 
"  bly,  and  all  officers,  executive  und Judicial,  shall  I)e  bound  by 
"oath  or  affirmation  to  support  the  constitution  of  this  com- 
•'  monwealth,  and  to  perform  the  duties  of  their  respective 
••  ofljf  fs  with  fidelity."  On   what  grounds  are  these  piovisioils 


420  CASES  IN  Till-:  SUPREME  COURT 

1808.      made,  ui.less,  as  judge  7'?/C/i6'r  observes,  the  constitution  regards 

"T  the    judicial  exposition    of    that  instrument,  as  the  bulwark 

Lmkkick  r  .  ,  ... 

,,  provided  against  the  undue  extension  ot    legislative   power? 

Harris.  1  Tuck.  apl).  288.  The  judiciary  power,  far  from  being  an 
emanation  from  the  executive,  is  intended  by  the  American 
constitutions  as  a  counterpoise  or  check  to  its  excesses,  and 
those  of  the  legislature.  3  Tuck.  Black.  24.  note  2.  See  Fede- 
ralist^ No.  78. 

The  10th  section  of  the  1st  article  of  the  constitution 
of  the  United  States  provides,  among  other  things,  that  "  no 
''  state  shall  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law 
*'  impairing  the  obligation  of  contracts;"  and  the  17th  section 
of  the  9th  article  of  the  state  constitution  expressly  directs,  that 
"  no  ex  post  facto  law,  nor  any  law  impairing  contracts  shall  be 
made;"  and  the  18th  section  asserts  that  "  no  person  shall  be 
attainted  of  treason  or  felony  by  the  legislature."  Put  a  strong- 
case,  which  for  the  honour  of  human  nature  we  can  scarcely 
suppose  the  possibility  of:  that  the  legislature  should,  under 
very  peculiar  circumstances,  (as  in  the  case  of  sir  John  Fen- 
ivicke  in  England)  pass  an  act  of  attainder  against  an  obnoxious 
citizen  for  treason,  and  the  attorney  general  should  demand  of 
the  court  to  award  execution.  Will  it  be  said  that  we  are  com- 
pellable to  pass  such  sentence,  against  the  express  words,  and 
plain  meaning  of  both  constitutions,  and  the  tenor  of  our  oaths 
of  office?  Would  it  not  be  our  bounden  duty  to  refuse  to  pass  the 
sentence,  and  to  put  the  party  on  his  trial  according  to  the  ordi- 
nary course  of  law,  as  was  done  by  the  judges  of  the  general 
court  in  Virg-inia^  on  an  Act  passed  to  attaint  Josiah  Phillips  in 
May  1778,  unless  he  should  render  himself  to  justice  within  a 
limited  time?   1  Tuck.  Black,  app.  293. 

The  obligation  of  aii  oath  imposed  upon  us  to  support  both 
constitutions  would  be  nugatory,  if  it  were  dependent  upon  either 
of  the  other  branches  of  the  government,  or  in  any  manner  sub- 
ject to  their  control;  since  such  control  might  operate  to  the 
destruction  instead  of  the  support  of  either  constitution.  Nor 
can  it  escape  observation,  that  to  require  such  an  oath  on  the 
partof  the  judges  on  the  one  hand,  and  yet  suppose  them  bound 
by  acts  of  the  legislature  which  may  violate  the  constitution 
they  have  sworn  to  support,  carries  with  it  such  a  degree  of 
impiety  as  well  as  absurdity,  as  no  man  who  pays  any  regard  to 
the  obligations  of  an  oath,  can  be  supposed  either  to  contend  for 


OF  PENNSYLVANIA.  42 

or  defend.  1  Tuck.  Black,  append.  o5S.   My  idea  of  the  obliga-      1808. 
tions  arising  from  the  oath  to  support  the  constitutions  of  th^~F^F.nicK 
United  States  and  this  state,  prescribed  breach  of  those  solemn         v. 
instruments,  is  plainly  this:   Whether  the  party  moves  in  the   Harris. 
sphere  of  the  legislative^  executive^  or  judicial  department,  he 
is  bound  to  maintain  and  uphold  those  compacts  made  with  the 
people.   Possessed  of  a  portion  of  the  lawmaking  power,  he  is 
interdicted  from  exercising  his  legislative  right  in  such  a  man- 
ner, as  may  injure  or  impair  the  sources  from  which  his  autho- 
rity is  derived.  In  the  executive  branch,  he  shall  carefully  avoid 
every  act  which  may  have  that  injurious  tendency.    In  the  ju- 
diciarv,  he  shall  fairly  and  patiently  compare  legislative  acts 
v/ith  both  constitutions,  and  honestly  pronounce  upon  them  as 
his  judgment  and   conscience  shall  dictate,  widiout  regarding 
consequences.  A  due  conformity  to  the  oath  of  office  in  a  judge, 
creates  duties  beyond  those  of  passive  obedience.   It  requires 
the  active   energies  of  the  mind  to  determine  on  the  constitu- 
tionalitv  of  those  laws,  which  may  be  brought  before  him  in 
judgment;  and  in  his  decisions  he  shall />r^^fc^  those  paramount 
laws  v  hich  he  has  sworn  to  support. 

Every  one  can  readily  see  that  the  judges  mav  be  thrown 
into  a  delicate  situation  by  the  exercise  of  this  constitutional 
right.  They  are  subjected  to  the  lawmaking  power  by  im- 
j)eachment,  or  by  removal  for  causes  which  do  not  furnish 
ground  of  impeachment;  and  may  therefore  in  one  sense  be 
supposed  to  owe  their  existence  to  the  lawmaking  power.  I  can 
only  answer,  the  constitution  of  this  state  contemplates  no  wilful 
perversion  of  the  power  of  impeacliment  or  removal;  and  it  is 
to  be  hoped,  for  the  honour  of  human  nature,  that  such  instan- 
ces will  seldom  occur.  Whenever  it  does  happen,  the  judge 
must  derive  consolation  from  the  integrity  of  his  own  mind,  and 
the  honest  feelings  that  he  has  discharged  his  duty  with  hdelity 
to  the  government.  When  he  accepted  his  comniission  he 
knew  the  tenure  of  his  office;  and  it  is  much  l)etter  that  iiidivi- 
fluals  should  suffer  a  private  inconvenience,  than  the  commu- 
nity sustain  a  public  injury.  Posterity  sooner  or  later  will  do 
him  cf)mj)kte  justice. 

The  power  of  the  judiciary  branch  to  pronounce  against  the 
vnlidity  of  the  laws  of  the  union  and  of  individual  states,  ib 
taken  for  granted  by  the  act  of  congress  oi  Sept.  24th  1789, 
.'fee.  25.    In   certain    cases  whore  is    drawn   in   question   the 

Vol.  I.  .1  H 


422  CASES  IN  TIIK  SUPREME  COUKT 

180S.      valiiiiti,  of  a  treaty  or  statute  of,  or  an  authority  exercised  un- 
vT,„„  ^      clci"!  tl^e   United  Stutes.  and  the  decision  is  against  their  vali- 

Jt:.MRRICK  ... 

T.  ditv;  or  where  is  drawn  in  (lucstion  the  validity  of  a  atatitte  of, 
IIarkis.  or  an  authoritv  exercised  under,  wny  state.,  on  the  g' round  of 
their  heirtg  repugnant  to  the  constitution.,  treaties,  or  hiws  of  the 
United  Stateft.,  and  the  decision  is  in  favour  of  such  their  valt- 
ditv;  or  wliere  is  drawn  in  question  the  construction  of  an\ 
clause  of  the  constitution,  or  of  a  treaty,  or  statute  of,  or  com- 
mission held  under  the  United  States^  and  the  decision  is 
against  the  title,  right,  privilege,  or  exemption,  specially  set  up 
or  claimed  by  either  party  under  such  clause  of  the  said  consti- 
tution, treaty,  statute,  or  commission,  the  final  judgment  or  de- 
cree in  any  suit  in  the  highest  court  of  law  or  equity  of  a  state, 
may  be  reexamined  and  reversed  or  affirmed  in  the  supreme 
court  of  the  United  States.,  upon  a  writ  of  error.  1  U.  S'. 
Laws  64. 

On  this  point  there  is  no  dearth  of  precedents,  either  in  the 
courts  of  tile  union,  or  of  our  own  btate.  In  the  case  of  the 
Invalid  pensions,  the  judges  of  the  supreme  court  of  the 
Ujiited  States  in  1791  refused  to  execute  an  act  of  congress. 
2Dall.  410.  1  Tuck.  BUick.  app.  5.  \\\  Hxjlton,  plaintiff  in  error  ^ 
V.  The  United  States.,  the  sole  point  in  question  was  the  consti- 
tutionalitv  of  the  law  of  congress  passed  June  5th  1794,  laying 
a  duty  on  carriages  for  the  conveyance  of  persons.  3  Dall. 
171.  In  Vanhorne'^s  lessee  v.  Dor  ranee,  Judge  Patterson  deter- 
mined the  confirming  act  of  Pennsylvania  of  28th  March  1787 
to  be  unconstitutional  and  void.  2  Dall.  304.  In  the  courts  of 
this  state,  \v\Austin\s  Lessee  v.  The  Trustees  of  the  University  oj 
Pennsylvania.,  a  law  of  this  state  passed  on  the  6th  August 
1784  was  adjudged  to  be  unconstitutional,  in  April  term  1793. 
In  Re.spublica  v.  Cobbctt^  December  term  1798,  Kespiiblicay.  Du- 
puet,  December  term  1799,  on  a  case  stated  respecting  the 
wooden  buildings  in  the  city,  the  constitutionality  of  certain 
laws  was  fully  argued;  and  in  Rcspuhlica  v.  Franklin  and 
y^w/^in*,  the  constitutionality  of  the  intrusion  Act  of  the  11th 
April  1795  was  debated  at  great  length,  both  in  the  circuit 
court,  and  here  in  December  term  1802.  Indeed  until  lately 
there  was  but  one  opinion  on  this  subject;  it  being  uniformly 
conceded  by  the  bar,  and  held  by  the  bench,  that  the  courts  of 
justice  must  necessarily  possess  and  exercise  the  power  of 
judging  of  the  constitutionality  of  all  laws,   brought    before 


OF  PENNSYLVANIA.  423 

them  jiiditially.  At  the  same  time  I  readily  admit  that  the  ju-      1808. 
dicial  authority  ought  not  to  dechire  a  law  to  be  unconstitu-  I^ie^jck 
tional,  unless   in  cases  perfectly  plain  and  clear.    It  cannot  be         -u, 
denied  that  the  entertaining  an  argument  on  the  constitution-   Harhis. 
ality  of  a  legislative  act  by  the  judiciary,  implies  necessarily  in 
itself  a  power  to  judge  and  determine  on  its  validity,  on  a  fair 
comparison  of  it  with  the  powers  granted  to  the  former  branch 
of  the  government,  by  a  solemn  act  of  the  people,  sanctioned 
by  the  oaths  of  those  who  are  delegated  to  act  in  the  three 
branches. 

The  opinion  of  the  supreme  court  of  the  United  States  be- 
tween Marbunj  v.  Madison^  on  the  motion  for  a  rule  on  the 
secretar)'  of  state  of  the  United  States  to  shew  cause  why  u 
mandamus  should  not  issue,  commanding  him  to  cause  to  be 
delivered  to  the  plaintiff  his  commission  as  justice  ofthe  peace  in 
thedistrictofC(5^^«zZ'/«,  has  been  published  in  1  Cran.  137.  since 
I  drew  up  this  opinion.  The  act  to  establish  the  judicial 
courts  of  the  United  States^  authorized  the  supreme  court  "to 
*'  issue  writs  of  mandamus,  in  cases  warranted  by  the  principles 
''  and  usages  of  law,  to  any  courts  appointed,  or  persons  holding 
"  office^  under  the  authority  of  the  United  States^  1  U.  S. 
Imxvs  58.  sec.  13.  The  court  adjudged  that  this  was  a  plain 
case  for  a  mandamus  either  to  deliver  the  commission  or  a 
copv  of  it  from  the  record.  1  Cran.  173.  But  the  power  of  the 
supreme  court  being  limited  by  the  constitution,  in  point  of 
origihal  jurisdiction,  "  to  cases  affecting  ambassadors,  other 
"  public  ministers  and  consuls,  and  those  in  which  a  state 
*'  shall  be  a  party,"  it  was  adjudged  that  the  clause  in  the  act  of 
congress  v/as  unconstitutional,  and  could  not  be  execvited  by 
the  supreme  court.  The  chief  justice  has  demonstrated  that 
"  courts  as  well  as  other  departments  are  bound  by  the  consti- 
"  tution,  and  that  the  essential  principle  of  all  written  constitu- 
"  tions  is  that  a  law  repugnant  to  that  instrument  is  void." 
p.  180.  "  It  is  emphatically  the  pr(A'inct;  and  duty  f)f  the  judi- 
'*  cial  department  to  say  what  the  law  is.  Those  who  apply  the 
"  rule  to  particular  cases,  mustof  necessity  expoimd  and  inter- 
"  pret  that  rule.  If  two  laws  conflict  with  each  other,  the  court?^ 
"  must  decide  on  the  operation  of  each."  p.  177.  I  feel  that  I 
should  be  guilty  of  injustice  to  the  elaborate  argument  of  the 
chief  justice,  were  I  to  quote  detached  parts  of  his  system  of 
reasoning  on  this  subjert.    I  have  no  hesitation  in  saying  for 


424  CASES  IN«THE  SUPREME  COURT 

1808.      myself,  that  his  observations  have  strengthened  and  confirmed 
~Kl.r~.~,        ^l^c  sentiments  I  have  ever  entertained  of  the  indispensable  ob- 

C.MEHleK  "^ 

T.         lipjation  of  written  constitutions  upon  judiciary  characters.  See 
Harhis.    1  jyi/s.460. 

When  the  con\cntion  declare  in  the  5ih  section  of  the  bill 
of  rights,  that  "'trials  bv  jury  shall  be  os  heretofore,  and  the 
"  right  thereof  shall  remain  inviolate,"  I  do  not  conceive  that 
any  restriction  is  thereby  laid  on  the  legislative  authority,  as  to 
erecting  or  organizing  new  judicial  tribunals  in  such  manner 
as  may  be  most  conducive  to  the  general  weal,  on  a  change  of 
circumstances  eflVcted  by  a  variety  of  causes.  This  appears  plain 
to  me  from  the  5th  article  of  the  constitution, which  vests  the  ju- 
dicial power  of  the  state  "  in  a  supreme  court,  courts  of  oyer  and 
"  terminer, and  sessions  of  general  gaol  delivery,  common  pleas, 
"  orphan's  court,  register's  court,  sessions  of  the  peace,  justices 
"  of  the  peace,  and  in  .s-uch  other  court.'i  as  the  legislature  may 
"  from  time  to  time  establish."  But  it  is  equally  obvious  to  my 
understanding,  that  the  legislature  cannotconstitutionally  impose 
any  provisions  substantially  restrictive  of  the  right  of  trial  by 
jury.  They  may  give  existence  to  new  forums;  they  may  mo- 
dify the  powers  and  jurisdiction  of  former  courts,  in  such  in- 
stances as  are  not  interdicted  by  the  constitution  from  which 
their  legitimate  powers  are  derived.  Still,  the  sacred  inherent 
right  of  every  citizen,  atrial  by  jury,  must  be  preserved.  '■'■It 
shall  remain  inviolate,  as  heretofore." 

When  the  present  state  constitution  was  formed,  the  10/.  act 
which  passed  on  the  5th  April  1785  was  in  full  force,  and  must 
be  presumed  to  have  been  in  the  contemplation  of  the  conven- 
tion, who  by  the  words  "  as  heretofore"  virtually  confirmed  it. 
The  law  now  in  question  was  enacted  at  a  subsequent  period  on 
the  19th  April  1794;  and  is  therefore  subject  to  legal  discus- 
sion. It  extended  the  jurisdiction  of  justices  of  the  peace  to  20/. 
With  the  wisdom,  sound  policy,  or  expedience  of  that  law,  this 
court  have  nothing  to  do.  These  are  matters  purely  of  legisla- 
tive dehberation  and  cognisance.  I  cannot  avoid  lamenting  that 
the  original  jurisdiction  of  suits  embraced  bj'  the  act  is  exclu- 
sively assigned  to  a  single  justice,  and  only  an  appellate  juris- 
diction reserved  to  a  jury.  But  it  must  be  admitted  that  the  right 
of  trial  by  jury  is  not  taken  away,  though  the  party  may  be 
subjected  to  some  inconvenience  in  making  his  election.  The 
law  therefore  appears  to  me  not  to  be  thsit  plain  and  clear  casCy 


OF  PENNSYLVANIA.  425 

in  which  I  should  feel  myself  authorized  to  pronounce  on  its  in-      ^808. 

validity,  as  a  deviation  from  the  constitution;  and  therefore  I  Emerick 
find  myself  bound  to  give  judgment  for  the  plaintiff. 


V. 

Hakris. 


Smith  J.  concurred. 

Brackenridge  J.  began  by  saying  that  the  case  involved 
two  questions,  1.  Whether  this  court  had  authority  to  decide 
upon  the  unconstitutionality  of  an  act  of  assembly;  and  2.  Whe- 
ther the  particular  law  in  question  was  against  the  constitution. 
He  said  that  the  first  was  a  vexata  qucest'to^  very  delicate  and  em- 
barrassing in  its  nature;  that  he  had  made  out  his  observations 
at  a  considerable  length,  in  which  the  difficulties  of  the  ques- 
tion were  stated;  but  that  at  present  he  did  not  think  it  neces- 
sar)'  to  read  them.  He  then  proceeded  upon  the  second  ques- 
tion as  follows: 

Assuming  it  as  a  principle,  that  a  case  may  occur  where  it 
may  be  the  duty  of  the  judiciary  to  pronounce  upon  an  act  of 
the  legislature  as  contrary  to  the  constitution,  and  where  they 
may  be  called  upon,  as  in  the  present  instance,  to  arrest  the 
execution  of  it,  we  come  to  inquire  whether  the  act  in  question 
is  of  that  nature. 

By  the  constitution,  art.  10.  sect.  1.,  "  the  judicial  power  of 
"  this  commonwealth  shall  be  vested  in  a  supreme  court,  in 
*'  courts  of  oyer  and  terminer  and  general  gaol  delivery,  in  u 
"  court  of  common  pleas,  orphan's  court,  register's  court,  and 
**  a  court  of  quarter  sessions  of  the  peace  for  each  county,  /'// 
*^  justices  of  t/ic  /)caci\  and  in  such  other  courts  as  the  Icjris- 
"  lature  may  from  time  to  time  establish."  From  a  specifica- 
tion of  the  different  tribunals,  it  would  seem  to  be  inferible, 
that  the  distribution  of  the  jurisdiction  shall  Ije  according  to 
the  nature  of  the  forum.  That  of  justices  of  the  peace  did  not 
originally  extend  to  civil  cases.  But  by  an  early  act  of  the  legis- 
lature of  the  province,  in  the  year  1700,  civil  jurisdiction  was 
given  under  the  title  of  "  An  act  for  determining  debts  under 
-tO.v."  This  act  continuing  five  years  was  repealed,  but  supplied 
in  1715.  I'Vom  the  jurisdiction  of  the  justices,  under  this  act, 
was  excepted  "  debts  for  rents,  or  contracts  for  real  estates." 
By  an  act  of  Marcli  1st  1745  the  jurisdiction  was  extended  to 
'*  actions  for  debt,  or  other  demand  for  the  value  of  40a-.  and 
"  upwards,  and  not  exceeding  5/."  with  an  appeal  under  certain 


426  CASES  IM  THE  SUPREME  COURT 

1808.      regulations  to  the  court  of  common  pleas.  This  appeal  has 
"j^iPRic^bcen  construed  to  extend  only  to  demands  above  40,v.  Un- 
T'.         dcr  this  act  there  is  an  exception  "  of  debt   for   rent,   debt 
Hahhis.    upon  bond    for  performance  of  covenants,  actions  of  reple- 
vin,  or  u|X)n  any  real  contract,   actions   of  trespass   on    the 
case  for  trover  and  conversion  or  slander,  actions  of  trespass 
for  assault  and  battery  or  imprisonment,  actions  where  the 
title  of  lands  shall  anywise  come  in  question.  " 

Such  was  the  jurisdiction  exercised  at  the  framing  of  the  con- 
stitution under  the  commonwealth  in  1776;  in  which  constitu- 
tion, there  is  nothing  that  has  a  direct  reference  to  the  powers 
of  the  justices  of  the  peace,  or  from  which  we  can  collect,  that 
the  jurisdiction  which  has  been  given  by  these  acts  of  assem- 
bly, and  exercised  under  the  province,  was  provided  against; 
imless  it  be  in  that  article  of  the  declaration  of  rights,  "  that  in 
''  controversies  respecting  property,  and  in  suits  between  man 
*'  and  man,  the  parties  have  a  right  to  trial  by  jury,  which  ought 
"■  to  be  held  sacred;"  or  in  that  clause  of  the  constitution  "  trials 
"  shall  be  by  jury  as  heretofore."  Under  this  constitution,  by 
an  act  of  the  legislature,  Jan.  28th,  1777,  entitled  "  an  act 
"  to  revive  and  put  in  force  such  and  so  much  of  the  late  laws 
"  of  the  ^jrovince  as  is  judged  necessary  to  be  in  force  in  this 
"  commonwealth,"  we  find  no  exception  of  those  laws  giving 
jurisdiction  to  the  justices  of  the  peace  in  controversies  respect- 
'ng  property,  and  in  suits  between  man  and  man;  whence 
it  is  inferible,  either  that  the  legislature  did  not  attend  to  the 
nature  of  these  laws,  giving  jurisdiction  to  the  justices  "  in 
*'  suits  between  man  and  man;"  or  that  they  did  not  consider 
them  as  inconsistent  with  the  provisions  of  the  constitution. 
These  provisions  are  the  same,  in  substance,  with  those  of  the 
charter  of  liberties  granted  by  William  Penn  to  the  first  settlers 
of  the  province,  in  which  it  is  declared  "  that  all  trials  shall  be 
*'  by  twelve  men,  and,  as  near  as  may  be,  peers,  or  equals,  and 
"  of  the  neighbourhood,  and  without  just  exception;"  the  laws 
agreed  upon  in  England  in  1682.  And  yet  in  the  face  of  this 
provision,  jurisdiction  to  the  justices  in  civil  matters  had  been 
originally  given,  and  continued. 

Under  the  constitution  of  the  commonwealth,  by  an  act 
of  the  23d  September  1784,  supplied  by  an  act  of  the  5th  April 
1 785,  the  jurisdiction  of  the  justices  in  civil  matters  was  exten- 
ded to  debts  and  demands  not  exceeding  10/.;  subject  to  like 


OF  PENNSYLVANIA.  427 

appeals,  and  under  similar  regulations,  restrictions,  and  excep-      1808. 
tions  as  in  the  preceding  act  of  March  1745.  Emerick 

The  framers  of  the  present  constitution  had  these  acts  before  v. 
them,  and  the  exercise  of  this  jurisdiction  within  their  know-  Harris. 
ledge;  and  yet  we  find  no  direct  exclusion  of  this  jurisdiction, 
and  nothing  more  than  what  may  be  collected  from  the  like 
words  with  those  before  used:  "  trials  shall  be  by  jury  as  here- 
"•'  tofore."  For  it  would  not  seem  that  the  variation  in  the 
words  "  trials  shall  be  by  jury  as  heretofore,"  as  in  the  con- 
stitution of  1776,  and  "trials  by  jury  shall  be  as  heretofore," 
as  in  the  constitution  of  1790,  would  warrant  the  conclusion 
that  a  change  of  meaning  was  intended;  or  that  any  exclusion 
can  be  drawn  from  the  one  expression  more  than  the  oth^r, 
with  a  reference  to  the  jurisdiction  of  the  justices. 

It  is  under  this  constitution  (1790)  that  we  come  to  the  act 
before  us,  oi  April  1794,  by  which  the  jurisdiction  is  extended 
to  20/.,  subject  to  an  appeal  in  matters  above  5/.;  and  with  ex- 
ceptions as  in  the  act  preceding.  The  most  material  particular 
in  this  act,  is  the  taking  awav  the  appeal  in  a  demand  above 
40*.,  and  not  exceeding  31. 

By  an  act  of  the  23d  September  1784,  extending  the  juris- 
diction of  the  justices  of  the  peace  to  actions  of  debt  or  de- 
mand of  the  value  of  5/.  and  not  exceeding  10/.,  as  in  the  case 
of  debts  of  the  value  of  40*-.  and  not  exceeding  5/.,  an  appeal 
was  excluded.  1  his  by  an  act  of  the  5th  April  1785  was  re- 
pealed, with  a  preamble,  "that  whereas  the  act  entitled,  &c. 
"  in  not  allowing  trial  by  jury  in  suits  or  actions  for  debts,  and 
"  other  demands,  cognisable  under  the  same  by  one  justice  of 
"  the  peace,  is-  contrari^  to  the  spirit  of  the  constitution  of  this 
"  statCy''  &c.  It  might  be  said  on  the  same  ground,  that  the 
taking  away  the  appeal  in  the  act  before  us  in  demands  above 
40.V.  and  not  exceeding  5/.,  in  which  case  it  was  before  allowed, 
is  contrary  to  the  spirit  of  ilic  constitution. 

It  is  of  less  moment  that  under  this  act  the  jurisdiction  oi 
the  justices  is  extended  to  a  demand  of  20/.;  yet  it  may  be  said 
to  be  "  contrary  to  the  spirit  of  the  constitution."  For  though 
an  appeal  is  saved  in  debt  or  demand  above  5/.,  yet  there  is  iu 
the  first  instance  a  privation  ol  tlie  trial  by  jury.  It  is  true  there 
is  weight  in  the  consideration  exj)rcsscd  in  the  preamble  of  the 
act,  "  tlie  lessening  in  the  value  of  money."  But  it  cannot  be 
in  the  spirit  of  the  constitution,  but  contrary  ta  it,  to  extend  the 


428  CASES  IN  THE  SUPREME  COURT 

1808.  jurisdiction  of  the  justices  of  the  peace,  ad  libitum,  and  to  any 
Emeuick  '^^^^'"^  *"^'^"  allowing  the  appeal.  Yet  it  is  one  thing  to  be  con- 
r,  trar)-  to  the  spirit  of  the  constitution,  and  another  thing  to  be 
Hakris.  in  direct  violation  of  it.  "  Trial  by  jury  shall  be  as  heretofore." 
But  trial  by  jury  heretofore^  had  not  been  known  in  the  forum 
of  the  justice.  And  it  could  not  be  with  a  view  to  secure  the 
jury  trial  in  this  forum,  that  the  provision  was  introduced.  It 
must  have  been  to  secure  the  trial  in  the  courts  where  it  had 
existed;  or  to  secure  it  in  those  courts  which  "  the  legislature 
"  may  from  time  to  time  establish."  But  in  the  distribution  of 
judicial  power  to  the  justices  of  the  peace  where  the  trial  by 
jury  does  not  exist,  what  is  given  more  to  the  cognisance  of 
the  justice,  is  making  less  the  jurisdiction  of  the  courts  where 
the  jury  trial  does  exist;  and  is  indirectly  taking  away  the 
trial  by  jury  from  the  subject  of  the  jurisdiction  given  to  the 
justice.  Yet  this  is  but  an  indirect  invasion;  and  the  difficulty  is 
to  say  where  it  may  begin  to  be  an  invasion,  unless  it  is  assumed 
as  a  principle  that  it  cannot  be  extended  beyond  what  it  was  at 
the  time  of  framing  the  constitution;  and  this,  taking  into  view 
the  history  and  progress  of  the  jurisdiction,  would  seem  to  be 
assuming  more  than  is  justifiable.  If  then  we  are  not  arrested 
at  the  precise  point  where  the  matter  stood  at  the  framing  of 
the  constitution,  with  respect  to  an  enlargement  of  the  jurisdic- 
tion of  the  justice  of  the  peace,  how  far  shall  we  go?  Where 
shall  we  stop?  Is  it  competent  to  the  judiciary  to  fix  this  point? 
Is  it  not  in  the  nature  of  it,  a  matter  of  discretion,  a  question  of 
expediency?  And  must  it  not  be  left  to  the  legislature?  What 
might  be  done  in  an  extreme  case  which  might  be  imagined, 
an  accumulation  of  jurisdiction  in  a  justice  of  the  peace  far 
beyond  any  thing  like  what  had  before  existed,  it  is  not  neces- 
sary to  say;  for  the  present  would  not  appear  to  me  to  be  such 
a  case,  nor  can  it  warrant  the  judiciary  to  exercise  an  act  of  such 
paramount  and  delicate  authority  as  to  interfere.  My  opinion 
therefore  must  be  for  the  plaintiff  in  the  suit  before  the  justice. 
It  will  be  observed  that  I  have  confined  myself  to  the  act 
giving  jurisdiction  to  the  justice  of  the  peace  in  demands  not 
exceeding  20/.,  under  which  the  jurisdiction  in  the  case  before 
us  arises;  and  which  act,  being  of  the  19th  April  1794,  is  an 
extension  of  the  act  of  March  1745,  and  subject  to,  and  under 
every  regulation,  restriction  and  exception  in  that  act.  The 
exceptions  in  that  act  with  respect  to  the  subject  of  contro- 


OF  PENNSYLVANIA.  429 

versy,  debt  for  rent,  debt  upon  bonds  for  performance  of  cove-      1808. 
nant,  actions  of  covenant,  replevin,  &c.  have  been  stated,  and  Emerick 
the  jurisdiction  in  the  act  in  question  being  sabject  to  the  like         t. 
exceptions,  it  has  not  come  in  my  way,  in  considering  the  case    "ARRis. 
before  us,  to  take  notice  of  what  might  be  the  question  in  a  case 
where  the  subject  of  jurisdiction  was  enlarged  as  to  the  cause 
of  action,  as  well  as  to  the  quantum  of  the  demand;  or  as  to 
the  cause  of  action  itself.   I  take  it  to  be  of  more  moment  that 
the  jurisdiction  be  confined  as  to  the  subject  of  controversy, 
than  as  to  the  quantum  of  demand,  or  at  least  as  much;  for  the 
principle  of  law,  which  may  come  in  view  and  be  disposed  of 
by  the  justice,  may  be  of  as  much  consequence  as  the  value  of 
the  property.  I  should  feel  myself  under  more  difficulty  to  re- 
concile the  enlarging  the  jurisdiction  as  to   cause  of   action, 
than  as  to  quantum  of  demand.  But  there  is  nothing  in  the 
act  before  us  which  goes  beyoud  debt,  or  contract,  or  actions  not 
excepted  in  the  act  of  March  1745. 

TiLGHMAN  C.  J.  gave  no  opinion,  not  having  been  upon  the 
bench  when  the  cause  was  argued.  But  he  said  he  had  under- 
stood from  the  late  chief  justice  Shippen,  that  he  agreed  with 
the  other  members  of  the  court. 

Judgment  affirmed. 


c 


Rous  SET  against  The  Insurance  Company   of   North  ^.^j^^^^^^^ 
4«»i*73  America.  Dcccnibci- 

.*L_i«5  2411i. 

ASK  for  the  opinion  of  the  court,   in  substance  as  fol-xiicas- 
lows:  siKiiicofa 

The  defendants,  on  the  28th   'Januarij  1799,  underwrote  a,Msiiniiice 
policy  of  insurance  in  the  name  of  ^t/z/V/wjin  iVo;je*,  for  4000^'^'^^"*'^''!*'''* 

to  nil   (Icf'll" 

dollars,  on  the  brig  Charlotte^  at  and  from  Philadvlphha  to  ^r//-cutiniis.to 

minpton.  N.  (!..  and  at  and  from  thence  to  Marthuqur.   At  the"'''^'''  "  ^^^' 
•  f     /r       •  I       •  XT  L  -siiLjcclbe- 

time  oi   effcctmg  the   nisurance,  JVonex  was  the  true  owner  ot  f,„-t;  the  as- 

thc  6'/jar/o//^,  and  she  was  duly  registered  in  his  name.  He '*'^'"'"'*"': 
continued  to  own  her  until  the  28tli  November  1799,  when  he  hy  the  as- 
sold  her  to  the  plaiiiliir.   On  that  day  he  executed  a  bill  of  sale  "'^T'"' ^''^ 

of  the  brig,  and  delivered  into  the  hands  of  the  plainiilV  the  nuiy  set  olla 

debt  due  by 
the  assifjnor  at  the  time  ofontTtinp  tlic  policy,  llioiip!)  it  be  an  open  policy,  andthccluim 
fur  a  f>artial\osfi. 

Vol..  [.  .3  I 


430  CASES  IN  THE  SUPREME  COURT 

1808.      J^bove  policy  of  insurance,  as  his  own,  and  for  his  own  use  and 
■benefit;  and  on  the  21st  yanuari/  1800,  the  policy  was  formal- 
ly assigned  by  indorsement.    In  the  month  of  March  1799  the 


ROUSSET 

T. 

Ins.  Co.  brig  sailed  upon  the  voyage  insured,  and  during  the  prosecu- 
N.  A.  tion  of  it  suffered  damage  from  stress  of  weather,  which  was 
repaired  in  the  JFe.'tf  Indies  during  the  winter  of  1800,  and  to 
recover  for  which  this  action  was  brought ;  but  at  the  time  of 
effecting  the  policy,  and  ever  since,  Nones  was  indebted  to  the 
defendants  for  premiums  on  insurance  made  by  them  for  him 
on  other  vessels  and  cargoes,  and  on  the  same  vessel  for  a  for- 
mer voyage ;  and  he  was  insolvent  at  the  time  he  sold  the  ves- 
sel, and  at  the  commencement  of  this  suit.  The  question  for 
the  court  was,  whether  the  defendants  had  a  right  to  set  off, 
against  the  plaintiff's  demand  for  a  partial  loss,  so  much  of  the 
debt  due  to  them  by  Noiies^  as  was  equal  thereto.  If  they  had, 
judgment  to  be  entered  for  the  defendants;  if  not,  judgment 
for  the  plaintiff. 

Upon  breaking  the  case,  the  court  intimated  an  opinion  that 

the  precise  point  had  been  determined  by  this  court  in  the  case 

of  Gourdon  against  the  same  defendants,  tried  at  bar  in  March 

»  1802,  {a)  and  the  set-off  sustained.  They  therefore  requested 

(a)  Gourdon-  for  the  use  of  his  Assignees  -d.  The  Insurance  Company  of 
North  America.   Tiuo  actions. 

These  were  two  actions  of  covenant  on  two  policies  of  insui-ance,  dated" 
18th  oi  April  1797,  the  one  on  the  .schooner  Felicity,  valued  at  5,000  dol- 
lars, the  other  on  her  cargo,  valued  at  20,000  dollars,  at  and  from  Philadelphia 
to  Leogane,  and  at  and  from    thence  back.  The  defendants  pleaded  cove- 
nants performed,  with  leave,  and  a  set-off. 

The  causes  were  tried  together  at  bar  in  March  term  1802,  when  the  fol- 
lowing facts  appeared  i;^  evidence.  On  the  23d  May  1797  the  schooner  was 
captured  on  her  homeward  voyage,  carried  into  Port  au  Prince,  where  the 
cargo  was  condemned,  and  the  schooner  acquitted;  but  after  her  acquittal, 
she  was  surveyed,  found  incapable  of  proceeding,  and  sold ;  and  the  net 
proceeds  of  sale  amounted  to  thirty-four  dollars  only.  An  abandonment  in 
both  cases  was  admitted. 

On  the  19th  April  1797,  Gourdon  assigned  the  two  policies,  the  schooner, 
and  her  outward  cargo,  with  invoices  and  bills  of  lading,  to  Pratt  and  Kint- 
zir.g,  to  secure  a  debt;  and  on  the  lotli  May  1797,  he  assigned  all  his  sur- 
plus propert)  to  a  committee  of  his  creditors  for  their  use  rateably. 

On  the  7th  of  ^uly  1798  Pratt  and  Kintzing,  having  received  their  demand 
due  from  Gourdon,  assigned  the  policies  to  the  assignees  of  the  creditors,  for 
whose  use  tlie  action  was  brought. 

The  defendants  claimed  a  defalcation  of  seven  protested  notes  given  by 
Gourdon,  previous  to  the  assignment  to  Pratt  and  Kintzing,  amounting  to 


OF  PENNSYLVANIA.  431 


* 


the  plaintiff's  counsel  to  look  into  it,  and  see  whether  he  could      1808. 
raise  a  distinction.  Rousset 


V. 


Levy  for  the  plaintiff,  at  a  subsequent  day  said,  that  he  had  Ins.  Co. 
examined  a  manuscript  report  of  the  case  referred  to,  in  the  JN.  A. 
possession  of  Mr.  Justice  Teates^  and  agieed  the  main  point 
of  the  case  to  be  well  decided,  namely,  that  the  insurers  might 
defalcate  against  the  general  assignees  of  an  insolvent  debtor; 
but  that  was  not  the  present  case,  and  therefore  he  thought  it 
proper  for  an  argument. 

He  contended  that  a  policy  of  insurance,  being  made  for 
whom  it  doth,  may,  or  shall  concern,  being  assignable  in  its 
nature  and  terms,  an  appendage  to  the  ownership  of  the  pro- 
perty insured,  and  inseparably  attached  to  it,  was  not  liable  to 
a  set-off  in  the  hands  of  a  honajide  assignee  for  a  valuable  con- 

15,125  dollars,  but  payable  after  the  subscription  of  the  policies,  to  wit,  in 
"June  and  October  1797;  a  further  sum  of  1,475  dollars  50  cents  on  two  charges 
of  premiums  for  insurance  made  the  22d  April  zwd  11th  May  1797,  with  a 
credit  of  three  moiitlis,  and  of  2,800  dollars  paid  to  Pratt  and  Kintzing  on  the 
27th  March  1798,  upon  the  policies  in  question;  and  9,300  dollars  paid  to  the 
United  States  for  duties  due  from  Gourdon,  on  the  3d  December  following.  The 
actions  were  entered  on  the  24th  December  1798  to  December  term. 

Pratt  deposed  to  the  copy  of  a  letter  from  his  letter  book,  dated  4th  May 
1797,  wherein  he  pave  notice  to  the  company  of  G<iurdon\-  assignment  of  the 
policies  to  the  firm;  and  to  his  belief,  that  the  original  was  given  to  one 
of  his  clerks  the  next  day  to  be  delivered.  But  the  secretary  of  the  company 
swore  that  no  such  letter  had  been  received.  The  company  denied  that  they 
had  received  any  notice  of  the  assignment  of  tiie  15th  May  1797;  and  on 
11th  December  1797  Gourdon  applied  in  his  own  name  for  j)aymcnt  of  the 
loss. 

About  the  lOlh  A/ay  1797,  Giiurdon\  creditors  hud  a  meeting,  when  tlu- 
secretary  ol' the  company  attended;  but  it  did  not  appear  whether  he  had 
given  notice  to  the  creditors  of  any  claims  for  Guurdons  notes,  or  for  pre- 
miums  wjiich  had  not  then  become  due 

On  the  7th  November  1797,  the  company  received  notice  of  the  loss  by  tlie 
captain's  protest  being  shewn  to  tlicir  secretary;  and  on  the  16th  November 
a  formal  abandonment  and  cession  were  executed  by  Gourdon,  and  Pratt  and 
Kintzing,  but  no  evidence  was  given  to  shew  when  it  was  oflered  to  the  de- 
fendants. 

It  was  agreed  upon  the  trial  that  the  jury  slioidd  ascertuiii  how  far  the 
defendants  were  entitled  to  a  defalcation;  and  that  the  balance  should  be  li- 
quidated by  reference. 

Dallas  and  Rawle  argued  for  the  plaintiff,  that  no  set-off  was  to  be  allow- 
ed against  a  policy  of  insurance,  which  was  assignable  like  a  bill  of  lading; 
and  they  cited  to  this  point  1  D.  iT*  K.  2G.  ^  D  iSf  K.  .142.  2  Valin.  45.  Skinn 


N.  A. 


432  CASES  IN  THE  SUPREME  COURT 

« 

1808.      sidcration.   It  is  essential  to  commerce,  that  this  instrument 
"Rousset    should  pass  freely  from  hand  to  hand.   Common  law  rules  are 
V.         not  applied  with  strictness    to    documents   of   this    descrip- 
Ins.  Co.    tion,  as  appears  by  the  strong  case  of  Feimer  v.  Clears;  {a) 
they  would  clog  thtm,  and  reuder  them  useless;   and  it  is  only 
upon  a  strict  common  law  principle  that  the  sct-offcan  be  sup- 
ported.  Policies  have   always  been  assignable.  They  are  not  a 
common  law  chose  in  action.  Though  executed  in  the  name  of 
one  person,  they  may  be,  and  most  commonly  are  recovered  in 
the  name  of  another.  Cunninghaffi^  176.  178.  Spencer  v.  Fran- 
cOy  Id.  276.  [C.  J.  TiLGHMAN.  That  is,  when  the  plaintiff  is  the 
original  cestui  que  trust.]  In  Masters  v.  Miller  (^),  Buller  J. 

(a)  2  W.  Blach.  1269.  {b)  A  D  Isf  E  342. 

54.  That  no  set-ofTat  all  events  could  po beyond  what  was  expressed  in  the 
policy,  wliicij  excluded  all  others.  Tlip.t  the  silence  of  the  company  on  the 
10th  May,  had  lulled  the  creditors  of  Gourdon,  and  prevented  them  from 
makinc:  other  insurance,  which  they  might  have  done.  Park,  320  1  Burr. 
492.  496.  They  admitted  that  the  payment  to  Pratt  and  Kintzing,  and  the 
duties,  must  be  allowed,  but  not  the  notes  due  subsequent  to  the  assignment; 
for  to  justify  set-off"  there  must  be  a  connexion  between  the  demands,  and 
they  must  be  in  the  same  right;  Ambl.  407.;  and  nothing  can  be  set  off 
against  an  assignee,  which  is  not  due  at  the  time  of  the  assignment.  1  Dull- 
28.  443.  3  Z)  ijf  E.\^&. 

Moylan,  IngerscU,  and  Tilghman,  contra,  contended  it  was  enough  if  the 
notes  had  come  to  matinity  before  action  brought.  That  the  rights  were 
the  same  between  the  company  and  assignees,  as  between  the  original  par- 
ties Doug  614.  1  Dull.  23.  7  D.iSf  E.  663.  That  a  set-off  was  allowed  even 
against  notes  of  hand,  until  the  act  of  27th  February  1797;  and  policies  were 
never  as  negotiable  as  they.  That  our  defalcation  act  was  more  comprehen- 
sive than  the  British  statutes.  That  a  policy  of  insurance  was  not  assignable 
at  law,  but  merely  in  equity;  and  that  therefore  no  assignment  could  extin- 
guish the  equity  of  the  company  to  set  off  their  demands  against  the  instru- 
ment, in  whose  hands  soever  it  might  be.  That  the  words  in  the  policy  were 
designed  merely  to  authorize  a  set-off" of  premium,  due  after  action  brought; 
and  that,  except  in  this  particular,  the  company  might  do  as  much  without 
them,  as  with  them:  the  argument  on  the  other  side  went  to  prove  that  if 
they  had  lent  Gourdon  money,  they  could  not  defalcate  it  even  against  himself- 

Shippen  C  J.  delivered  the  following  charge  to  the  jury. 

The  insurances,  loss,  and  abandonment  have  been  admitted,  though  the 
time  when  the  latter  was  offered  to  the  company  has  not  been  fixed.  The 
notice  of  the  assignments  appears  to  be  material  in  no  other  point  of  view  in 
this  case,  than  from  the  inferences  deduced  from  thence  that  the  defend- 
ants, were  accessory  to  the  loss  sustained  by  the  creditors  of  Gourdon.  If  the 
niits  had  been  brought  by  him  for  his  own  use,  the  set-off"  would  clearly  ob- 


OF  PENNSYLVANIA  433 

in  his  very  able  argument,  says,  that  the  objection,  that  the  as-      1808. 
signee  of  a  chose  in  action  cannot  maintain  an  action  in  his    „ 
own  name,  has  never  prevailed  in  a  mercantile  case;  and  "  in         -u. 
"  the  two  instances   most  universally  in  use,  it  undoubtedly    Ins.  Co. 
"  does  not  hold,  that  is,  in  cases  of  bills  of  exchange,  and  po-      ^" 
"  licies  of  insurance."  Bills  are  assignable  by  the  custom  of 
merchants,  so  are  policies  of  insurance;  in  each  case  the  hold- 
er or  assignee  may  recover  in  his  own  name.  The  absolute  pro- 
perty of  the  instrument  is  in  him;  and  therefore  any  equity  as 
between  the  underwriter  and  the  name  in  the  policy  is  out  of 

tain  agjainst  him,  and  operate  as  a  payment  pro  tanto,  because  the  counter- 
demand  had  actually  become  due  before  tl>e  actions  were  instituted;  and  if 
the  insurance  company  have  duly  and  fairly  made  their  claim  known,  tlieir 
ripht  of  set-off  continues  against  the  assignees.  Mr.  Pratt  in  his  deposition 
takes  notice  of  the  notes  payable  to  the  company,  and  says  they  had  not  be- 
come due  at  the  time  of  the  assignment;  but  how  could  he  have  known 
of  them,  unless  he  had  received  notice  thereof  from  the  defendants  ?  and 
would  he  not  thus  be  apprised  and  put  on  his  guard? 

The  law  on  the  subject  may  be  ascertained  without  much  difficultv.  The 
difficulty,  if  any,  will  depend  on  the  facts  disclosed  in  evidence.  To  as_ertain 
0"  law,  it  will  be  proper  to  premise  some  considerations  relating  to  nego- 
tiable paper,  and  what  instruments  come  under  that  denomination. 

Bills  of  exchange,  and  notes  payable  to  order  in  the  city  of  Philadelphia, 
are  properly  negotiable  paper,  after  such  notes  have  been  indorsed  bona  fide 
in  the  course  of  trade.  The  effect  is  that  the  holder  may  sue  in  his  own 
name,  and  may  recover  the  money  from  the  drawer  without  any  embarrass- 
ment whatever  on  account  of  any  counter  demands,  or  want  of  consideration 
as  between  the  drawer  or  maker  and  the  payee. 

Bonds  may  be  assigned  by  our  law  so  as  to  enable  the  assignee  to  bring 
an  action  on  them  in  his  own  name,  but  without  the  other  qualities  of  nego- 
tiable paper;  that  is,  if  the  obligor  had  before  the  assignment  any  just  de- 
mand against  the  obligee,  which  he  could  have  set  off  against  him  if  there 
had  been  no  assignment,  he  may  set  off" the  same  against  the  assignee,  who 
takes  the  bond  subject  to  all  the  equity  that  it  was  subject  to  before  tiio 
assignment  This  rule  is  however  subject  to  one  qualification.  If  the  as- 
signee, when  Ik-  is  about  to  take  the  assignment,  calls  upon  the  obligor  to 
know  whether  the  wliole  money  is  due,  and  the  obligor  tells  him  it  is  a  good 
bond,  but  is  entirely  silent  as  to  any  claim  of  his  against  the  bond,  he  can 
never  after  open  his  moutii  against  the  demand  of  the  assignee. 

A  policy  of  instirance  is  not  assignable  in  its  nature;  but  it  is  assign:il)Ie 
in  equity.  It  is  not  like  a  bill  of  lading,  which  is  assignable  in  its  nature,  iiTul 
the  assignment  of  which  vests  the  absolute  property  in  tlic  goods  assigned 
in  the  .assignee.  i\  pfjiicy  of  insurance,  in  its  (jualities,  resembles  a  bond  for 
payment  of  money  at  a  future  day,  more  than  any  other  instrument.  Tlicy 
arc  both  chotet  in  action.  It  is  only  by  a  particular  act  of  assembly  that  the 
assignee  may  bring  the  action  in  his  own  name,  if  the  assignment  be  scaled 
and  delivered  in  the  presence  of  two  subscribing  witnesses;  but  th**  law  docs 


434  CASES  IN  THK  SUPREME  COURT 

1808.      the  (luestion.  Such  is  the  universal  mercantile  usage.  In  France 

RoussET   ^  policy  is  negotiable  to  order  or  bearer  like  a  bill,  2  Valin  45.; 

X'.         and  the  ordinances  and  usages  of  France  have  often  received 

V    \       great  attention  from  this   court,   upon   questions  of  the  law 

merchant. 

The  circumstance,  that  the  policy  is  inseparably  attached  to 
the  property,  has  great  weight  from  analogy  to  the  common 
law  cases  of  covenants  running  with  the  land.   In  these,  and  in 
all  other  real  covenants,  the  assignee  may  sue  in  his  own  name. 
But  the  defendants  ha\-e  no  equity.  The  policy  authorizes 
certain  defalcations,  as  the  premium  of  the  particular  insurance, 
and  the  two  per  cent,  abatement ;  all  others  are  therefore  ex- 
cluded. Expressiim  facit  cessare  taciturn.   They  should  have 
retained  the  policy  until  the  premiums  were  paid.  They  have 
enabled  Nones  to  impose  upon  the  plaintiff,  and  have  lulled  him 
into  a  false  security,  by  which  they  should  lose,  and  not  he. 
GourdoiUs  case  is  very  distinguishable  from   this.   His  as- 
I  signees,  like  assignees  of  bankrupt^  stood  precisely  in  his  place, 

and  they  in  fact  sued  in  his  name.  The  equity  which  the  de- 
fendants had  against  him,  they  therefore  had  against  his  as- 
signees, according  to  Bosvill  v.  Brander  (a)  and   Taylor  v. 

(a)  I  P.  Wms.  459. 

not  prevent  the  obligor  from  showing'  a  want  of  consideration,  or  setting  off 
any  counter  demand  against  the  obligee. 

1  have  before  mentioned  tliat  it  is  incumbent  on  the  assignee  of  a  bond  to 
call  upon  the  obligor,  to  know  tlie  quantum  of  the  debt  due.  I  take  it  to  be 
likewise  incvmibcnt  on  the  assignee  of  a  policy  to  call  upon  the  underwriter 
and  inform  him  before  any  account  of  a  loss,  and  to  inquire  if  he  has  any 
thing  to  set  off  against  the  policy.  If  tlie  underwriter  has  this  notice,  and 
either  makes  no  objection  and  claim,  or  is  totally  silent  as  to  any  claim,  I 
.should  consider  the  assignee  of  the  policy  in  the  same  condition,  as  the  as- 
signee  of  a  bond  under  like  circumstances;  and  tliat  both  are  entitled  to  re- 
cover notwithstanding  the  underwriter  in  the  policy,  or  the  obligor  in  the 
bond,  should  afterwards  discover  that  he  had  a  counter  demand;  and  that 
their  mouths  are  stop])ed  by  their  acquiescence  or  silence;  otherwise  in 
both  cases  it  would  lead  to  a  deception. 

The  chief  question  then  in  this  case  is  a  question  of  fact,  whether  there 
was  any  notice  given  to  the  insurance  company  of  the  assignment;  and  whe- 
ther they  either  by  acts,  words,  or  silence,  waived  giving  any  intimation  of 
their  demands  against  the  assured.  We  will  only  add  that  the  underwriters 
are  acquitted,  unless  the  plaintiff  or  his  creditors  have  suffered  by  their  de- 
fault in  not  letting  their  claims  be  known. 

The  jury  fovmd  for  the  jjlaintiff,  but  that  the  defendants  were  entitled  to 
the  defalcation. 


OF  PENNSYLVANIA.  4351 

Wheeler  (a).   But  here  we  have  paid  a  valuable  consideration.      1 808. 
Gourdon's  was  also  a  valued  policy,  and  the  claim,  lor  a  total  Rqusset 
loss;  this  is  an  open  policy,  and  the  claim  for  a  partial  loss;  and  it         v. 
is  clear  by  the  law  of  England^  which  seems  by  the  case  oiGor-    Ins.  Co. 
don  V.  Boivne  (b)  to  be  also  the  law  of  New  York,  that  a  set-off 
is  not  maintainable  in  such  a  case.   I  however  do  not  mean  to 
press  this  point,  as  our  act  of  defalcation  goes  further  than  the 
English  statutes. 

Hopkinson  and  Ing-ersoll,  who  were  to  have  argued  for  the 
defendants,  were  stopped  bv  the  court. 

TiLGHMAN  C.  J.  This  cause  comes  before  us  on  a  case  sta- 
ted. Benjamin  Nones  had  an  insurance  effected  on  the  brig 
Charlotte.  He  afterwards  assigned  the  policy  to  the  plaintiff, 
and  then  became  insolvent.  There  was  a  partial  loss,  concern- 
ing which  there  is  no  dispute.  The  only  question  is  whether 
the  defendants  can  set  off  against  the  plaintiff,  a  debt  due  from 
Nones  at  the  time  the  policy  was  underwritten. 

The  court  thought  it  unnecessary  to  hear  the  counsel  for  the 
defendants;  because  they  considered  this  point  as  having  been 
settled  in  the  case  of  Gourdon  (for  the  use  of  his  assignees) 
against  The  Insurance  Company  of  North  America^  tried  in 
bank  at  March  term  1802.  The  charge  of  chief  justice  Shippcn, 
delivered  with  the  approbation  of  all  the  judges,  established  u 
principle  decisive  of  the  question  now  before  us:  that  is  to  say, 
that  a  policy  of  assurance  was  to  be  considered  as  other  chases 
in  action^  which  are  not  assignable  by  the  common  law,  but  on- 
ly in  equity;  and  consequently  the  assignee  takes  it  liable  to  all 
defalcations  to  which  it  was  subject  before  the  assignment. 
That  case  was  fully  argued.  I  have  read  judge  Teates^s  manu- 
script note  of  it,  and  find  that  the  arguments  urged  by  Mr. 
Levy  in  this  case,  were  then  brought  forward  by  the  counsel 
for  Gourdon\s-  assignees.  Upon  the  authority  of  that  case,  thcre- 
forf,  the  court  are  now  of  opinion  that  tlie  defendants  are  en- 
titled to  the  set-off  for  wliich  they  contend. 

Smitif  J.  I  am  of  opinion  that  the  defendants  are  entitled  to 
the  set-off  claimed,  under  the  practice  between  the  assured  and 

(«)  2  Vern.  561-.  (^)  2  Johmon,  150 


436  CASES  IN  THE  SUPREME  COURT 

1808.  ^e  underwriters  in  the  city  of  Philadelphia.   I  do  not  need  the 

RoussET  *^^  of  the  decision  in  GourdorCs  case  to  warrant  this  opinion;  it 

^.  is  founded  on  the  common  course  of  mercantile  transactions. 
Ins.  Co. 

N.  A.  Per  Curiam,                                   Judgment  for  defendants. 


PiGOTT  CP-c/w.?/ HoLLOVVAY.  jo  4.,^. 

Saturday,  ^  6s,  j^i 

December  "srajj 

24th.  In  Error.  ^J  sis; 

-A  joint  com- T~^  RROR  to  the  common  pleas  of  Montg-omeru.   Holloxvauy 

mission  issu-    P.      li--a-ii  i  i_-7i- 

ed  to  Lon-     "^   the  plamtiit  below,  brought  indebitatus  assumpsit  upon  a 

^T'  k"j,       judgment  entered  by  warrant  of  attorney  against  Pigott  in  the 

plaintift'na-   common  pleas  oiWestmtnster .  Ajointcommission  issued  to  Zow- 

anedcom-      ^Qy^  for  theexamination  of  witnesses;  with  which  the  plaintiff  sent 
anissioncrs     .  .  i  1  -i  •      .  •  1  1  • 

-whose  pro-    mterrogatones  to  be  exhibited  to  witnesses  produced  on  his  own 

fession  and    behalf,  and  Other  interrogatories  for  the  witnesses  that  mieht  be 

particular  1     1     ir     r    1       1    r       1 

residence  he  produced  on  behalf  of  the  defendant;  and  he  named  as  his  com- 

"h^  Tf  ''j*^  missioners  Samuel  Marshall^  of  Serjeant'' s  Inn^  Fleet-street^  in 

ant  named     the  City  o(  LoTidon^  Serjeant  at  law,  and  Vitruvius  Lawes^  of 

^\^^  ,,       Red Lionsan^Lxe.  in  the  county  of  Middlesex^  barrister  at  law.  The 

iind  CD.  r      1  •  • 

"of  Lon-       defendant  sentinterrogatoriestobe  administered  to  the  witnesses 

",^®".*   ,     ^  produced  on  his  own  behalf,  and  named  as  his  commissioners, 

plaintin  s        '  .  '  ' 

commission-  Robert  Thomas  esquire,  and  Mr.  Joseph  Robinson^  both  of  the 

ers  caused     ^.jj    q£  London.  The  commission,  which  was  forwarded  in  "^une 
inquiries  to         -^  '  .  -^ 

he  made        ov  July  1805,  was  executed  in  January  1806  by  the  plaintiff's 

lor  the  commissioners  only;  who  certified  that,  having  caused  due  in- 

commission-        ,  .  ■'  to 

ersoftlie       quiries  to  be  made  after  the  residences  of  A'o^erf  Thomas  2Lnd. 

defendant,      ^Q^eph  Robinson,  named  with  them  for  executing  the  commis- 
and  no  sucJi    J       ^  ^  o 

persons  be- 
in^  found, 
they  executed  the  commission  ex  parte.  Held  that  the  commission  was  well  executed. 

Interrogatories,  which  are  directed  to  be  put  to  the  witnesses  on  behalf  of  one  party, 
need  not  be  put  to  the  witnesses  of  tlie  other. 

A  subscribing'  witness  to  a  waiTant  of  attorney  swore,  that  from  his  minutes  h»  found 
he  was  present  at  a  certain  place  on  a  c<;rtain  day,  being-  the  day  the  warrant  bore  date, 
and  that  upon  reference  to  the  warrant  he  found  liis  name  in  his  own  handwTiting  as  an 
attesting  witness,  and  that  the  seal  appeared  to  have  been  taken  from  an  engraving  he 
then  and  still  had;  and  from  all  these  circumstances  he  luas  convinced  that  he  was  present, 
and  -uhncsied  the  execution  of  the  instrument.  This  is  sufficient  proof  of  the  warrant  to  go  to 
thejuiy. 


OF  PENNSYLVANIA.  457 

sion,  in  order  to  give  them  notice  thereof,  and  it  appearing  to      1 808. 
them  that  no  such  persons  were  to  be  found,  they  had  proceeded    Pj^ott 
to  the  execution  of  the  commission  ex  parte.  They  also  attach-         v. 
ed  to  the  commission  the  affidavit  of  Faithful  Croft^  sworn  be-    Ho'.lo- 
fore  A.  Chambre  at  his  chambers  in  Sergeant's  Inn^  London^ 
stating  that  in  pursuance  of  instructions  from  the  plaintiff's 
commissioners,  he  had  diligently  made  inquiries  to  learn  the 
residences  of  Messrs.  Thomas  Vind.  Robinson^  on  l\v^  American 
walk  in  the  Royal  Exchange^  at  the  houses  of  several  American 
merchants,  at  the  New  York  and  Carolina  coffeehouses,  and  at 
the  general  postofficc;  and  not  being  able  to  gain  any  intelli- 
gence of  them,  he  left  the  outside  cover  of  the  commission 
containing  a  direction  to  all  the  commissioners,  with  a  clerk  at 
the  postoffice,  and  requested  him  to  inquire  for  them  of  all  the 
postmen  and  lettercarriers,  for  the  city  of  London  and  its  vi- 
cinity; and  that  he  was  afterwards  informed  by  the  clerk,  whom 
he  believed,  that  he  had  called  out  their  names  two  days  in 
succession  to  all  the  lettercarriers;   but  their  residence  was  to- 
tally unknown  to  them. 

No  witnesses  were  produced  on  behalf  of  the  defendant;  and 
the  plaintiff's  witnesses  were  examined  only  upon  the  plaintiff's 
interrogatories. 

Annexed  to  the  commission  was  a  warrant  of  attorney 
dated  23d  May  in  the  35th  oi George  od,  purporting  to  be  signed 
by  the  defendant,  and  to  be  witnessed  by  H.  Martclli^  who,  in 
answer  to  one  of  the  plaintiff's  interrogatories,  swore  that  upon 
reference  to  his  minutes, he  found  he  was  present  at  the  London 
tavern  in  Bishopsgate  street  in  the  city  oi  London^  on  Saturday 
the  23d  dav  of  3Iay  1795;  and  upon  reference  to  the  warrant  of 
attorney  signed  Edxvard  Pigott^  purporting  to  be  a  warrant  of 
attorney  from  Edivurd  Pigott  of  Twyford  in  the  county  of  Berks ^ 
esquire,  to  the  plaintiff,  for  securing  the  sum  of  554/.  and  inte- 
rest, there  not  appearing  to  have  been  any  bond,  he  found  his 
name  in  his  oxvn  handivriti/ig  subscribed  (hereto  as  the  attesting 
iritness  to  its  execution;  and  that  the  defeasance*  to  such  warrant 
of  attorney  was  all  in  his  handwriting,  and  the  iihpression  of 
the  seal  appeared  to  have  been  taken  from  a?i  engraving  he  then 
and  still  had;  and  from  all  these  circumstances  he  was  convinced 
that  he  was  present  and  witnessed  the  execution  of  such  instrU' 
I'lcnt^  to  which  there  was  no  other  subscribing";  witness. 

Vol  .  \.  \   K 


438  CASES  IN  Till:  SUPREME  COURT 

1808.  Upon  the  trial  below,  the  depositions  and  answers  under  the 

Pigott" commission  were  offered  in  evidence,  generally,  by  the  plain- 

X,.         tiff;  and  they  were  objected  to  by  the  defendant,  because  they 

HoLi.o-    were  taken  ex  parte,  and  because  the  defendant's  interrogato- 

WAV.      j.i(.g  j^.^j  j^^j.  \y^^y^  pm  J.Q  ti^j.  plaintiff's  witnesses.  But  the  court 

overruled  both  objections.  The  plaintiff  then  offered  to  read 
the  warrant  of  attorney;  to  which  the  defendant  objected,  be- 
cause the  execution  of  it  was  not  sufficiently  proved  by  Mar- 
tcUVs  deposition.  But  the  court  suffered  the  warrant  to  go  to 
the  jury;  and  sealed  a  bill  of  exceptions  upon  all  the  points. 

Frazer  for  the  plaintiff  in  error  contended,  that  under  the 
circumstances  of  the  case,  the  nonattendance  of  the  defendant's 
commissioners  was  fatal.  The  commissioners  of  the  plaintiff 
made  no  inquiry  themselves;  but  referred  it  to  Crqft^  who 
sought  among  merchants  for  persons  who  do  not  appear  to  be 
of  that  description,  and  then  turned  the  matter  over  to  a  clerk 
in  the  postoffice.  Every  thing  he  learned  from  the  clerk  is 
hearsav;  he  did  not  know  a  svllable  of  it  to  be  true;  and  the  ob- 
vious way  to  ascertain  the  truth  would  have  been  to  swear  the 
clerk  or  the  lettercarriers.  The  neglect  of  such  a  precaution  is 
strong  to  shew  a  design  of  excluding  the  defendant's  evidence. 
Croft  himself  was  not  legally  sworn.  The  oath  was  administered 
by  one  who  docs  not  set  forth  any  authority;  and  the  affidavit  is 
therefore  no  more  than  an  informal  account  of  what  another 
person  told  him,  which  should  not  have  received  the  least  cre- 
dit from  the  court  below. 

The  defendant's  interrogatories  should  have  been  put  to  the 
plaintiff's  witnesses,  for  whom  from  their  nature  they  were 
designed,  as  well  as  for  his  own.  At  present  the  witnesses  stand 
without  cross  examination,  although  the  materials  for  it  were 
in  the  commissioners'  hands. 

MarteU'i  does  not  swear  either  that  he  saw,  or  that  he  be- 
lieves he  saw,  Pigott  execute  the  warrant  of  attorney;  or  that 
the  signature  is  his  handwriting.  He  merely  swears  that  from 
his  minutes  he  is  convinced  he  witnessed  its  execution,  which 
might  have  been  by  a  person  who  forged  Pigotfs  hand.  To 
make  a  deed  evidence,  the  execution  of  it  must  be  proved  by 
at  least  one  witness,  who  saw  it  sealed  and  delivered  by  the 
party.  The  handwriting  is  one  step;  but  although  this  be 
proved,  or  even  confessed,  it  will  not  answer  without  proof  of 


WAY, 


OF  PENNSYLVANIA.  439 

the  delivery,  which  is  of  the  essence  of  the  deed,  and  which  can      18t)8. 
be  proved  only  by  a  witness  who  sav-^  it.  Abbott  v.  Plumbe  (a).    Pkjott 
Com.  Dig.  Evidence  B.   3.    Bull.  N.   P.  254.    Gilb.  Ev.  99.         v. 
Peake  Ev.  97.   Martelli  does  not  swear  to  the  delivery,  nor  to    Hollo- 
the  handwriting  of  Pig-ott^  nor  to  its  execution  by  him.  All 
that  he  swears  may  be  true,  and  yet  the  warrant  no  deed  of 
Pigott.  He  even  swears  from  minutes,  and  not  from  recollec- 
tion refreshed  by  minutes.  Peakc  Ev.  190. 

Milnor  and  Ross  for  the  defendant  in  error.  The  circum- 
stances shew  either  fraud  or  gross  negligence  in  Pigott.  The 
residence  and  profession  of  the  plaintift^'s  commissioners  being 
accuratelv  described,  it  was  easy  on  his  part  to  find  them  out, 
and  to  produce  to  them,  both  his  witnesses  and  commissioners. 
On  the  other  hand  the  profession  of  his  own  commissioners  not 
being  set  forth  at  all,  and  their  residence  stated  to  be  merely  in 
London.,  where  without  further  description  it  would  be  hope- 
less to  look  for  them,  nothing  can  be  imputed  to  the  plaintiff 
for  not  finding  them.  If  it  rested  only  here,  the  objection  would 
be  of  no  avail;  for  the  ex  parte  execution  would  be  owing  to  a 
loose  description  by  the  defendant,  who  by  diligence  might 
have  remedied  the  evil,  and  whose  duty  it  was  to  do  it,  and  not 
ours.  The  plaintiff  is  not  to  lose  the  benefit  of  testimony,  by  the 
laches  of  the  opposite  party.  But  further.  The  commissioners 
were  sought  for  among  merchants,  and  at  the  general  post- 
office,  and  an  affidavit  made  that  the  inquiries  were  futile.  The 
ver}'  names  are  calculated  to  increase  the  difficulty.  So  that  it 
is  clear  there  was  something  more  than  negligence. 

The  answer  to  the  second  objection  is  obvious.  The  defend- 
ant directed  his  interrogatories  to  be  put  to  his  own  witnesses, 
and  he  produced  none.  It  would  have  been  contrary  to  in- 
structions if  the  commissioners  had  exhibited  them  to  the  wit- 
nesses of  the  plaintiff. 

We  do  not  argue  tliat  the  deposition  of  Martelli  conclusively 
proved  the  warrant  of  attorney,  but  that  the  proof  was  sufficient 
to  go  to  the  jury;  and  Par/lc  v.  Meats  (/;)  is  a  plain  authoi  ity 
for  this  distinction.  H  Martelli  was  quibl)ling,  the  jury  might 
have  disbelieved  him;  but  if  he  was  not,  the  warrant  was  suffi- 
ciently proved.   After  the  lapse  of  eleven  years,  he  was  right 

Cfi)  JJouf^.  20.1  (b)  .T  Juf}.  in 


4  to  CASES  IN  THE  SUPREME  COURT 

1808.      t«  speak  cautiously.    He  gives  the  ground  of  his  belief";  and  he 
~~^         ~"  concludes  by  saying,  not  that  his  minutes  prove  this  or  that,  but 
1,,         that  he  is  convinced  that  he  witnessed  the  execution,  which  in- 
HoLLo-    dudes  every  thing.  To  say  that  it  might  have  been  executed 
WAV.      ]^y  some  one  else,  is  deciding  upon  the  eftcct  of  the  evidence, 
which  was  for  the  jury.   There  have  been  many  instances  in 
our  own  courts,  where  such  proof  has  gone  to  the  jury.   In  a 
case  ex  parte  Hiiirtf  and  Laxvcrswyler  in  the  district  court,  the 
witness  swore  that  he  did  not  recollect  the  execution,  but  that 
he  knew  his  own  handwriting,  and  would  not  have  signed  un- 
less he-  had  seen  the  execution  of  the  deed.  It  went  to  the  jury. 
So  in  the  Lessee  of  Roberts  v.  Beatty^  where  a  subscribing  wit- 
ness to  the  will  of  Jane  Roberts  swore  to  his  signature,  but  did 
not  recollect  to  have  seen  the  testatrix  sign  it,  nor  did  he  know 
her  handwriting.   And  the  like  in  Ncffw  Neff'm  this  court. 

Reply.  The  case  of  Park  v.  Mears  is  not  to  the  purpose. 
There  the  witness  did  recollect  that  the  obligor  acknowledged 
his  signature;  and  he  attested  it  at  the  request  of  a  person  then 
with  the  obligor.  But  the  question  was  whether  the  execution 
had  not  been  previously  completed  before  a  witnessgin  another 
room,  and  so  this  acknowledgment  merely  in  the  light  of 
a  subsequent  confession,  which  would  not  be  evidence.  In 
Hurrif^s  case  the  witness  sw^ore  that  he  should  not  have  signed 
it,  unless  he  had  seen  the  party  execute  it;  and  that  was  proba- 
bly the  case  in  Roberts  v.  Realty.  But  here  the  witness  does 
not  swear  to  his  practice  of  not  attesting  except  when  he  saw 
the  party  execute  the  instrument,  nor  does  he  swear  even  to  a 
belief  that  he  saw  Pigott  execute  it. 

TiLGHMAN  C.  J.  This  cause  comes  before  us  on  a  writ  of 
error  to  the  common  pleas  of  Montgomery  county,  founded  on 
a  bill  of  exceptions.  Thomas  Holtoway  the  defendant  in  error 
was  plaintiff  below.  His  action  was  founded  on  a  judgment  ob- 
tained against  the  defendant  in  one  of  the  courts  of  England. 
A  commission  to  take  depositions  of  witnesses  residing  in  En- 
gland was  moved  for  by  the  defendant  and  issued,  in  which 
both  plaintiff  and  defendant  joined.  Each  party  exhibited  in- 
terrogatories. The  plaintiff  filed  interrogatories  to  be  adminis- 
tered to  his  own  witnesses,  and  also  to  the  witnesses  of  the  de- 
fendant. The  defendant  filed  interrogatories  to  be  administered 


■WAY. 


OF  PENNSYLVANIA.  441 

to  his  own  witnesses  only.  Two  commissioners  were  appointed      1808. 
on  each  part,  and  the  commission  was  sent  forward  directed  to    p 
the  four  commissioners.  It  was  returned  executed  by  the  plain-         x;. 
tiff's  commissioners  only,  who  certified  that  after  diligent  in-     Hollo- 
quiry  and  search,  no  such  persons,  as  those  who  were  named 
commissioners  for  the  defendant,  could  be  found.   Annexed  to 
the  return  of  the  commission  was  an  ex  parte  affidavit  oi Faithful 
Croft^  making  particular  mention  of  the  steps  taken  by  him  to 
discover  the  defendant's  commissioners.  The  plaintiff's  tom- 
xnissioners  are  described  in  the  commission  both  by  their  pro- 
fession and  place  of  abode.  The  defendant's  are  only  described 
as  being  of  London. 

Two  objections  were  urged  by  the  defendant  to  the  admis- 
sion of  the  depositions  taken  on  this  commission  as  evidence  on 
the  trial.  1st.  That  the  execution  of  the  commission  by  the 
commissioners  of  the  plaintiff  only,  was  irregular.  2d.  That  the 
interrogatories  of  the  defendant  ought  to  have  been  adminis- 
tered to  the  witnesses  produced  on  the  part  of  the  plaintiff.  On 
both  these  points  the  court  below  gave  an  opinion  against  the 
defendant,  and  permitted  the  depositions  to  be  read  in  evidence. 

The  defendant  then  objected  to  the  reading  in  evidence  of  a 
warrant  of  attorney,  said  to  be  executed  by  him,  annexed  to  the 
return,  and  referred  to  in  the  deposition  of  one  of  the  witnes- 
ses, who  swore  that  his  name  subscribed  as  a  witness  was  oi 
his  own  handwriting,  as  was  also  the  defeasance  to  the  war- 
rant of  attomev;  that  on  having  recourse  to  some  private  mi- 
nutes of  his  own  he  found  that  on  the  day  of  the  date  of  the 
said  warrant  he  was  at  a  certain  house  in  London^  where  he  sup- 
posed it  was  executed;  that  the  seal  was  an  impression  from  an 
engraving  which  belonged  to  him;  and  from  all  these  circum- 
stances he  was  convinced  he  was  present  and  witnessed  the 
execution  of  the  said  instrument;  and  that  there  was  no  other 
subscribing  witness.  The  court  below  were  of  opinion  that  on 
this  evidence  the  warrant  ofattornev  might  be  read  to  the  jury. 

These  several  oljjections  are  stated  in  the  1)111  oi  exceptions, 
on  which  tliis  court  is  now  to  decide. 

As  to  the  irregularitv  of  the  execution  of  the  commission  by 
the  plaintiff's  commissioners  only,  it  appears  to  me  that,  cir- 
cumstanced as  matters  were,  an  ex  parte  execution  was  not  im- 
proper. It  was  the  defendant's  fault  that  his  commissioners  had 
no  share  in  the  execution;  he  was  negligent  in  not  describing 


412  CASES  IN  THE  SUPREME  COURT " 

1808.      them  by  their  profession  or  occupation,  and  place  of  abode.  Be- 
PiVoTT    ^'^"^^  '^  does  not  appear  that  he  took  the  proper  measures  for 
V.         executing  the  commission.  He  had  a  right  to  forward  it  him- 
Hoi.Lo-    self,  and  should  have  done  so.    If  he  did  not  know  where  his 
^^^^'      own  commissioners  resided,  he  should  have  sent  the  commis- 
sion to  some  friend  or  agent,  with  directions  to  find  them  out; 
and  he  should  have  taken  care  to  give  notice  to  the  plaintiff's 
commissioners  where   his  own  were  to  be  found.   The  court 
cannot  avoid  observing  that  this  would  have  been  very  easy,  as 
the  plaintiff's  commissioners  were  men  of  notoriety;  one  of 
them  Mr.  Marshall^  a  serjeant  at  law  and  author  of  the  trea- 
tise on  insurance;  the  other  Mr.  Lawes^  a  barrister.  The  com- 
mission is  dated  in  May  1805,  and  executed  in  January  1806; 
so  that  there  was  ample  time  for  taking  every  necessary  step  to 
insure  the  attendance  of  the  defendant's  commissioners.    It 
would  be  extremelyhard  if,  after  this  lapse  of  time, and  this  care- 
lessness of  the  defendant,  the  plaintiff  should  be  deprived  of  the 
benefit  of  his  testimony,  merely  because  the  commission  was 
not  executed  by  men  who  were  sought  for  and  could  not  be 
found. 

The  second  objection  is  answered  by  adverting  to  the  inter- 
rogatories filed  by  the  defendant.  They  are  directed  to  be  ad- 
ministered to  his  own  witnesses.  It  is  much  to  be  regretted,  if 
any  material  facts  have  been  lost  for  want  of  a  cross  examina- 
tion of  the  plaintiff's  witnesses.  But  the  commissioners  acted 
with  strict  propriety  in  not  propounding  any  questions  on  the 
part  of  the  defendant  to  the  plaintiff's  witnesses,  because  the 
defendant  had  not  directed  any  such  questions  to  be  put. 

As  to  the  third  objection,  which  goes  to  the  reading  the  war- 
rant of  attorney  in  evidence,  I  am  clearly  of  opinion  the  court 
below  were  right. 

Whether  the  evidence  contained  in  the  de|Msition  was  suf- 
ficient to  establish  the  execution  of  the  warrant  of  attorney, 
was  for  the  consideration  of  the  jury;  but  surely  there  was 
enough  to  authorize  the  court  to  submit  it  to  them.  Few  men 
can  swear  positively  to  the  sealing  and  delivery  of  an  instru- 
ment after  any  considerable  time.  In  this  instance  the  witness 
mentioned  strong  circumstances  from  which  he  was  convinced 
that  he  attested  the  execution;  he  knew  his  own  handwri- 
ting and  his  own  seal.  But  the  defendant's  counsel  has  urged, 
that  he  has  not  said  that  the  signature  of  the  defendant's  name 


OF  PENNSYLVANIA.  443 

was  the  defendant's  writing,  nor  that  the  instrument  was  exe-      1808. 
cuted  by  the  defendant.   True,  he  has  not;  his  expressions  are  "^j^'^j^^ 
*'  that  he  is  convinced  he  was  present,  and  attested  the  execu-         ^, 
"  tion  of  the  instrument."  It  is  possible  the  witness  may  have    Hollo- 
quibbled.    He   might  have  seen  the  instrument  executed  by       ^^^"^■ 
some  other  person  who  forged  the  (lefendant's  name.  But  this 
kind  of  quibbling  approaches  so  near  to  perjury,  that  none  but 
a  rogue  would  be  guilty  of  it.  If  his  character  had  been  proved 
to  be  bad,  the  jury  might  have  disregarded  the  evidence.   But 
unless  his  character  was  impeached,   I  should  think  the  jury 
well  justified  in  believing,  that  the   instrument  was  executed 
by  the  defendant.     On  this  point  however  they  were  left  to 
judge.  The  objection  is,  that  the  court  ought  not  to  have  suf- 
fered them  to  exercise  any  judgment  on  it. 

My  opinion  is,  that  the  court  of  common  pleas  decided 
rightly,  and  that  their  judgment  be  affirmed. 

Yeates  J.  of  the  same  opinion. 

Smith  J.  Were  the  objections  of  the  plaintiff  in  error  to  the 
regularity  of  the  commission  to  prevail,  it  would  be  in  the  pow- 
er of  an  artful  defendant  to  delay  a  trial  for  a  long  period,  by 
naming  commissioners  not  in  existence,  or  not  to  be  found. 
The  defendant  below  first  applied  for  the  commission;  the 
plaintiff  joined;  regularly  the  defendant  should  have  given  no- 
tice to  the  plaintiff's  commissioners  of  the  time  and  place  of 
taking  the  depositions,  as  they  not  only  did  exist,  but  were  well 
known,  and  the  place  of  their  residence  described  in  the  com- 
mission; while  that  of  the  defendant's  commissioners  was  care- 
fully concealed;  nor  has  it  been  to  this  day  disclosed.  It  is  im- 
possible not  to  see  at  least  an  affectation  of  delay  in  the  defen- 
dant's conduct.  As  to  the  neglect  of  examining  the  plaintiff's 
witnesses  upon  the  defendant's  interrogatories,  the  defendant 
did  not  direct  any  questions  to  be  put  to  them.  In  all  the  pro- 
ceedings of  the  lower  court,  I  think  they  were  right,  and  con- 
cur in  the  affirmance  of  the  judgment. 

Brackenridcf.  J.  concurred  with  the  chief  justice. 

Judgment  aflftrmrd. 


444  CASES  IN  THE  SUPREME  COURT 

1808. 


Vans  ANT  against  Boileau  and  another.  ib  4441 

24th.  "  In  Error.  ,««  ■■«i 


Saturday, 
December 


108     308 


An  executor  TT'  RROR  to  the  common  pleas  o£ Bucks. 
t^ff'in'a fVitrn  "^^  ^'^^  ^^^^  below  was  a  feigned  issue  from  the  register's 
ed  issue  to  court,  to  try  the  vaUdity  of  a  paper  purporting  to  be  the  hist 
itvof  the*  '  'will  of  Nicholas  Vansant;  and  the  defendants  in  error,  who  were 
will,  is  not  a  the  executors  named  in  that  paper,  were  the  plaintiffs  in  the 
wiuicss^be-  'ssue.  Upon  the  trial,  Mr.  Boileau  was  offered  as  a  witness  to 
ing  liable  for  support  the  will,  and  was  objected  to  for  various  reasons;  but 
A  writ  of  ^^^  material  one  was  his  liability  for  costs.  The  court  overruled 
error  lies       the  objection,  and  sealed  a  bill  of  exceptions;  and  the  jury  found 

from  this  i*         r  i  i    •       -rr  •  1  1       • 

court  to  a      ^  verdict  tor  the  plamtins,  sixpence  damages,  and  sixpence 

judgment      costs,  upon  which  judgment  was  entered  as  in  common  cases. 

rendered  by 

the  common 

pleas  upon  a      The  question  under  the  bill  of  exceptions  was  argued  at 

feigned  is-     March  term,  1807,  when  Ross  for  the  plaintiff  in  error  conten- 
^"^-  ded,  that  even  considering  Boileau  as  an  executor,  he  stood  in 

the  light  of  a  prochein  amy,  who  being  liable  for  costs,  is  in- 
competent, according  to  Hopkins  v.  JVeal,  (a)  though  he  might 
have  no  other  interest ;  and  that  it  was  a  general  rule  that  a 
coplaintiff  could  not  be  examined  on  behalf  of  the  plaintiffs, 
in  consequence  of  this  liability.   1  P.  Wms.  595. 

Condy,  on  the  other  side,  argued,  that  as  executor  he  was  not 
liable  for  costs  in  the  event  of  his  failure;  (^)  but  further,  that 
upon  a  feigned  issue,  the  costs  did  not  follow  the  event  of  the 
trial,  but  were  adjusted  in  the  register's  court  as  expenses  at- 
tending the  probate,  and  charged  according  to  their  discretion. 
Of  course  Boileau  had  no  interest. 

The  court  however  decided  that  he  was  not  a  competent  wit- 
ness, on  the  ground  of  his  being  accountable  for  costs,  and  so 
maintained  the  exception. 

Conc/y  then  moved  to  quash  the  writ  of  error,  and  had  opened 
his  argument,  when  it  appeared  that  the  writ  had  not  been  duly 
returned,  and  it  went  off  for  amendment.  Upon  the  return  of  the 
writ,  the  motion  was  renewed,  and  argued  at  the  present  term. 

fa)  Stra.  1026.  '!>)  Vide  Tolhr.  439- 


u 


OF  PENNSYLVANIA.  445 

In  support  of  the  motion  he  contended  that  the  authority      1808. 
of  the  common  pleas,  overissues  from  the  register's  court,  was  Vansant 
confined  to  taking  and  returning  the  verdict;  and  that  the  judg-         t. 
ment  was  a  nullity.  The  18th  section  of  the  act  of  13th  April  Boilkau. 
1 791   provides  "  that  if  the  register's  court,  upon  a  dispute 
'  upon  facts  arising  before  them,  shall  sefid  an  issue  into  the 
court   of  common  pleas,   which  they   shall   do   at  the    re- 
quest of  either  party,  and  a  verdict  establishing'  the  said  Jacts 
"  be  retvmed^  the  said  facts  shall  not  be  reexamined  on  ap- 
peal." The  law  knows  nothing  of  a  feigned  issue  formed  in 
the  common  pit  as;  it  directs  the  real  issue,  between  the  parties 
in  the  register's  court,  to  be  sent  for  the  decision  of  a  jury, 
without  declaration  or  plea,  or  any  of  the  forms  of  a  common 
law  suit;  and  the  common  pleas,  instead  of  sealing  a  bill  of  ex- 
ceptions, hearing  a  motion  in  arrest  of  judgment,  or  entering 
a  judgment,  are  expressly  to  certify  the  nakexl  verdict  to  the 
register's  court,  for  their  further  proceeding.   If  a  new  trial  is 
proper,  from  the  errors  eithtr  of  judge  or  jury,  the  application 
must  be  to  the  register's  court;  and  if  they  err  in  their  defini- 
tive dccrte,  the  IGth  section  gives  an  appeal  to  the  court  of 
errors.  A  judgment  by  the  common  pleas  is  therefore  no  judg- 
ment in  point  of  law,  as  they  have  no  authority  to  render  it.  If 
they  have,  they  may  oust  the  party  of  his  appeal;  for  instead  of 
the  register's  court  passing  a  final  decree  upon  the  facts  re- 
turned by  the  verdict,  all  whir  h  may  be  carried  by  appeal  to 
the  court  of  errors,  this  court  will  pass  a  final  judgment  only 
upon  matters  of  law  appearing  on  the  record.  The  whole  pro- 
ceeding is  copied  from,  and  is  in  strict  analogy  to,  tht;  sending 
of  issues  from  chancery.   Upon  verdicts  on  these  issues,  judg- 
ments are  not  entered  in  the  common  hiw  court,  2  Ilarr.  Oum. 
124.;  and  if  a  mw  trial  is  wanted,  application  must  be  to  the 
chancellor;  ihid.^  whether  for  the  misdirection  of  the  judge  or 
otherwise.    Lord  Fuulconhertf  v.   Puree   (a),   Cleeve  v.    Gas- 
coigne  (/;).   And  what  shews  clearly  that  the  issue  does  not  at 
all  follow  the  course  of  issues  originating  in  the  common  law 
court,  is  that  the  costs,  which  follow  the  event  of  the  trial  in 
other  cases,  in  these  are  in  the  discretion  of  chancery,  0.  Ilarr. 
Chan.  125.   Now,  in  the  fee  bill,  or  in  the  act  of  1791,  there  is 
not  a  word  about  the  costs  of  an  issue  i\<m\  the  register's  court. 

(a)  AmU  210  (/;)  Ambl.  323. 

Vol.  I.  3  L 


446  CASES  IN  THF,  SUPRKME  COURT 

1  aOR.      At  common  law  there  are  no  costs.  The  act  being  silent,  the 
VAAs\Nr  common  pleas  cannot  give  them.   Hut  it  jmist  give  them  co 
V.         nomine,  and  to  the  winning  party,  if  it  renders  judgment  upon 
Boii.EAU.  this  verdict;  and  therefore  it  cannot  render  judgment.  The  fact 
is  that  there  are  no  costs  at  all;  l)ut  the  expenses  of  the  issue 
are  an  incident  to  the  probate  of  the  will,  and  are  charged  ac- 
cording to  the  discretion  of  the  register's  court.  Another  diffi- 
culty: the  executor  is  helrl  not  to  be  a  witness.  We  wish  to 
strike  his  name  from  the  proceeding;  it  is  a  mere  form,  and  any 
name  will  do  as  well.  If  the  verdict  were  certified  to  the  regis- 
ter's court,  they  who  moulded  the  proceeding  might  rectify  it; 
but  if  it  be  strictly  a  suit  at  law,  we  are  without  remedy  either 
here  or  in  the  common  pleas,  except  at  the  expense  of  paying 
costs. 

JRoss  contra.  "The  common  pleas  has  rendered  a  formal 
judgment,  and  therefore  we  are  clear  of  technical  difficulties. 
It  is  now  simplv  a  question,  who  is  to  correct  the  errors  of  that 
court  upon  the  trial  of  a  feigned  issue.  That  the  register's  court 
can,  is  begging  the  question.  It  is  a  court  of  limited  jurisdic- 
tion, and  of  prescribed  powers,  wholly  unlike  the  court  of  chan- 
cery; which  has  the  most  extensive  authority,  and  in  various 
ways  directly  or  indirectly  controls  the  proceedings  of  other 
courts.  The  act  does  not  authorize  the  register's  court  to  grant 
a  new  trial.  It  provides  no  way  of  making  known  to  it  the  mis- 
direction of  the  judge,  or  the  evidence;  but  it  gives  the  limited 
power  of  sending  forward  an  issue,  which  in  every  respect 
thereafter  is  left  to  the  operation  of  common  law  rules.  In 
point  of  fact  there  are  real  parties  to  this  issue;  in  practice  there 
is  a  declaration  and  a  plea;  matters  of  law  and  fact  are  discus- 
sed according  to  common  law  principles  and  the  rules  of  evi- 
dence; and  therefore  there  is  nothing  to  except  it  from  the 
control  of  this  court,  which  has  power,  equal  to  the  king's 
bench,  to  correct  errors  in  the  judgment,  process  or  proceed- 
ings of  the  lower  courts.  Act  of  1722.  Province  Laws  112.  The 
act  of  1791  gives  a  new  jurisdiction  to  the  common  pleas  in  the 
matter  of  feigned  issues,  without  limiting  the  mode  of  its  ex- 
ercise; it  must  therefore  be  according  to  the  course  of  the  com- 
mon law,  and  controllable  by  writ  of  error  or  certiorari  from 


OF  PENNSYLVANIA.  447 

this  court,  Groeiivelt  v.  BuinvelL  («)  Accordingly  so  has  been      1808. 
the  practice  since  the  date  of  the  hnv.  In  numberless  cases  theTT     ~~~~~r 
issue  has  been  lemoved  by  certiorari  to  this  court,  and  tried         .y. 
here,  precisely  like  other  issues.   In  one  case  the  plaintiff  was  Boileau. 
permitted  to  suffer  a  nonsuit;  and  in  Vanlear  v.  Van/ear  this 
court,  and  not  the  register's,  granted  a  new  trial.  This  mode 
of  proceeding  is  obviously  the  most  convenient,  and  by  far  the 
most  conducive  to  justice;  and  it  in  no  wise  defeats  the  law, 
because  the  verdict  can  be  as  well  returned  after  a  new  trial 
and  judgment,  as  before.  Costs  it  is  said  are  not  of  course;  but 
the  contrary  has  been  the  uniform  sentiment,  and  it  was  clearly 
implied  by  the  judgment  of  this  court  upon  the  bill  of  excep- 
tions. But  if  the  objection  were  good,  it  proves  nothing,  be- 
cause as  the  costs  of  the  verdict  are  settled,  so  may  be  those  of 
the  judgment  and  writ  of  error. 

Reply.  The  practice  under  the  law  can  be  of  no  avail  against 
its  express  directions  ;  especially  a  recent  practice,  as  any  one 
under  this  law  must  be.  How  is  the  bill  of  exceptions  obtained 
in  this  case?  The  statute  gives  it  where  one  is  impleaded  before  ^ 

the  justices  to  whom  the  exception  is  alleged.  If  these  parties 
are  impleaded  any  where,  it  is  in  the  register's  court.  As  to 
allowing  a  nonsuit,  that  decision  has  been  often  overruled,  and 
it  shews  the  difference  between  this  and  other  issues;  to  allow  it, 
would  be  to  defeat  the  register's  court,  and  so  does  the  writ  of 
error.  Our  great  difficulty  is  unnoticed.  How  are  we  to  get 
Boileau^ s- name  from  the  issue?  [C.  J.  Tilghman.  You  may 
apply  to  the  register  to  new  model  the  issue.]  That  we  could 
have  done  had  the  verdict  gone  back;  but  the  register's  court 
cannot  now  get  hold  of  it. 

TiLGHMAN  C.  J.  This  case  comes  before  us  on  a  motion  to 
qua  .h  the  writ  of  error  by  virtue  of  which  the  record  was  re- 
mcjvcd  from  the  court  of  common  pleas  oi  Bucks  county.  An 
issu<  had  been  directed  to  that  court,  by  tlie  register's  court  of 
Bucks  county,  to  try  the  validity  of  a  writing  set  up  as  the  last 
will  «>r  Nicholas  Vansant  deceased.  The  court  of  common  ple.xs, 
according   to  the  usual  course  of  proceeding  in  such  cases, 

(rt)  1  SM.  C6.^ 


448  CASES  IN  THE  SUPREME  COURT 

1808.  caused  an  action  to  be  entcrcJ,  a  declaration  to  be  filed,  and  an 
V'ansan  r  issue  joined.  A  verdict  was  found  for  the  plaintiffs,  in  which 
V.  damages  and  costs  were  assessed,  and  judgment  was  entered. 
BoiLEAu.  In  the  course  of  the  trial,  a  bill  of  exceptions  was  tendered  b}' 
the  defendant  who  is  plaintiff  in  error  in  this  court;  which  was 
sealed  by  the  judges  and  sent  up  with  the  re«ord.  The  point 
contained  in  the  bill  of  exceptions  was  argued  some  time  ago; 
and  this  court  delivered  their  opinion  in  favour  of  the  plaintift' 
in  error.  The  counsel  for  the  defendant  in  error  then  moved 
to  quash  the  writ;  and  he  has  urged  many  ingenious  reasons 
in  support  of  his  motion.  The  scope  of  his  argument  is  this  : 
that  by  the  act  of  assembly  of  13th  April  1791,  the  register's 
court  are  authorized  to  send  an  issue  to  the  court  of  common 
pleas  for  the  trial  of  facts  disputed  before  them,  and  the  ver- 
dict establishing  such  facts  is  directed  to  be  returned  to  the 
register's  court;  that  if  improper  evidence  was  admitted  at  the 
trial,  this  should  have  been  represented,  b3^the  party  injured,  to 
the  register's  court,  who  might  have  ordered  a  new  trial,  and 
in  case  they  had  refused  so  to  do,  an  appeal  might  have  been 
made  from  their  decision;  that  the  court  of  common  pleas 
ought  not  to  have  entered  judgment  on  the  verdict  found  be- 
fore them,  nor  had  they  any  occasion  for  a  feigned  issue  in  or- 
der to  try  the  facts  sent  from  the  register's  court. 

It  is  unnecessary  for  me  to  give  an  opinion  whether  or  not 
the  facts  might  have  been  tried  in  the  common  pleas,  without 
having  recourse  to  the  expedient  of  a  feigned  issue.  It  is  cer- 
tain that  such  and  no  other  has  been  the  course  of  proceeding, 
from  the  passage  of  the  act  of  assembly  before  mentioned  to 
the  present  moment.  The  action,  placed  on  the  record  of  the 
common  pleas,  has  been  treated  like  all  other  actions.  It  has 
been  frequently  removed  to  this  court  by  certiorari  and  tried 
by  jury  here.  In  the  case  of  Vanlcar  v.  Vanlear  in  Chester 
county,  a  new  trial  was  ordered  by  this  court;  and  it  was  once 
decided  that  the  plaintiff  might  enter  a  non  pros.;  though  that 
decision  seems  now  generally  agreed  to  have  been  made  with- 
out sufficient  consideration,  because  the  entry  qf  a  nonpros. 
would  defeat  the  act  of  assembly  which  directs  the  issue  to  be 
tried j  and  the  verdict  to  be  returned  to  the  register's  court.  I 
can  see  nothing  in  the  act  of  assembly  which  looks  like  an  in- 
tent to  place  the  register's  court  on  the  footing  of  the  chancellor 
in  Englundj  who  exercises  the  right  of  ordering  a  second  trial. 


OF  PENNSYLVANIA.  449 

if  he  is  discontented  with  the  first.  Now  unless  that  court      1808. 
can  review  the  proceedings  of  the  court  of  common  pleas,  it  Vansant 
would  be  a  great  defect  in  the  administration  of  justice,  if  errors         v. 
could  not  be  corrected  in  this  court.   If  indeed  the  court  of  Boileau. 
common  pleas  had  given  no  final  judgment  in  the  case,  there 
would  have  been  a  technical  difficulty  hard  to  be  got  over:  a 
writ  of  error  does  not  lie,  except  on  a  final  judgment.   But  the 
judgment  entered  by  the  common  pleas  has  removed  all  objec- 
tions of  that  kind.  It  seems  to  me,  therefore,  that  whether  we 
consider  this   matter   upon  grounds   of  general  convenience, 
without  regard  to  former  decisions,  or  take  it  up  on  the  opinions 
which  have  been  entertained  both  by  the  courts  of  commou 
pleas  and  by  this  court,  ever  since  the  making  of  the  law  oa 
which  the  case  arises,  the  writ  of  error  was  properly  issued.  I 
am  therefore  of  opinion  that  it  should  not  be  quashed. 

Yeates  J.  was  holding  a  court  of  nisi  prius  during  the  ar- 
gument, and  gave  no  opinion. 

Smith  J.  Ingenious  as  were  the  arguments  of  the  counsel 
who  moved  to  quash  the  writ  of  error,  I  have  not  been  able  to 
entertain  a  doubt  upon  the  point. 

The  mode  here  pursued,  of  carrying  the  law  on  the  subject  into 
execution,  has  been  adopted  from  the  passingof  that  law.  Titks 
to  lands  depend  upon  the  legality  of  that  mode.  Yet  if  we  lound 
that  the  mode  hitherto  adopted  was  not  warranted  by  the 
law,  we  ought  to  correct  it.  Bat,  as  I  think  that  this  manner 
of  proceeding  is  warranted  by  the  law  and  is  c:ilculated  to  car- 
ty  it  into  complete  execution,  I  cannot  consent  to  quash  the 
writ  of  error. 

As  to  the  point  contained  in  the  l)ill  of  exceptions,  against 
the  admiss!l)ility  o(  N,  Boileau  as  a  witness,  if  it  be  open  to 
consideration,  I  think  it  deserves  another  discussion.  Arc  we 
preclutltd  from  discussing  it?  Let  it  not  be  said  that  judgment 
is  already  given  upon  it.  The  record  was  never  before  this 
court  until  this  tirm  ;  the  judgment  therefore  alleged  to  have 
been  given  is  a  mere  nullity.  It  seems  to  me  not  to  be  yet  too 
late  for  the  court  of  common  picas  (which  always  imder  this 
act  puts  the  issue  directed  by  the  register's  court  into  form)  so 


450  CASES  IN  THE  SUPREME  COURT 

1808.      ^f>  modify  that  issue,  as  that  justice  shall  not  he  entangled  ia 
Y~j,g^jj^"  a  net  of  form,  if  this  court  shall  be  warranted  in  awardiug  a 
^..        venire  facias  de  novo* 

BoiLEAU. 

Brackenridge  J.  concurred  with  the  chief  justice. 

lb  450 

Motion  refused,  '^^J^^?^ 

Judgment  reversed,  and     \^^^, 

*  '         Venire  de  novo  di>N^x<\^t&.     'iTJwfi 

IwsDSH 

Ig  131 

—  Ig  HO 

«■  *  19     407 

haturaayy  2i    425 

34   im\ 

C2     150 
63    339 

A  parol  con-  >'  I  ''HIS  cause  was  tried  before  Mr.  Justice  Teatcs  at  a  nisi 
saleoHands  prius  in  the  present  month,  when  a  point  was  reserved  for 


December  E  W I  N  G  against  Te  E  S . 


24th. 


is  g-ood  an-  the  opinion  of  this  court, 
frauds  and  ^^(^  facts,  according  to  the  report  of  his  Honour,  were 
perjuries,  to  m  substance  these.  .On  the  14th  November  1801  a  written 
action^for"  a^eement  was  made  by  the  defendant  with  Jacob  S.  Otto  as  the 
damages.  Soplaintiff's'agent,  to  pay  the  plaintiff  6,366  dollars  67  cents  for  a 
contract  ^T^ct  of  land  in  Philadelphia  county;  300  dollars  to  be  paid  on 
with  an  or  before  the  17th  of  the  month,  possession  of  the  land  to  be 
has  mer'ely  a  delivered  on  the  30th,  and  the  balance  to  be  paid  on  the  22d 
pai-ol  &\xi\\o- December  following,  when  the  deed  was  to  be  executed.  The 
Quaere,  whe-  agreement  was  signed  by  both  Otto  and  Tees.  Upon  the  trial, 
iher  in  any  a  witness  swore  that  on  the  17th  he  went  with  the  defendant  to 
court  will  Otto^  and  that  the  defendant  told  Otto  he  was  sorry  for  his 
grant  a  new  agreement,  as  his  wife  did  not  like  the  place,  but  that  he  would 
there  has  make  him  a  compensation  for  his  trouble;  that  Otto  replied,  he 
been  no  mo-  had  sent  the  agreement  to  the  plaintiff,  and  whether  he  would 
the  four  be  satisfied  with  it,  he  could  not  tell,  as  he  had  sold  the  place 
days.  £qj.  iggg  i-^rin  he  vvas  authorized  to  do;  that  the  defendant  then 

said,  this  is  the  day  I  was  to  pay  300  dollars,  and  if  you  cannot 
tell  me  whether  I  am  to  have  the  place  now,  I  will  have  no- 
thing to  do  with  it  before  diis  man;  to  which  Mr.  Otto  answer- 
ed, if  you  do  not  take  the  place  now,  you  will  be  sorry  lor  it 
hereafter.  The  witness  swore  that  he  believed  the  defendant 
had  300  dollars  in  his  pocket;  but  he  did  not  know  that  he  ten- 
dered it.  Between  the  17th  and  25th  the  plaintiff  assented  to 
the  agreement.  On  or  before  the  30th  the  possession  was  ten- 
dered, and  on  the  22d  December  a  deed;  both  which  the  defen- 


OF  PENNSYLVANIA.  451 

dant  refused.  The  place  was  then  sold  for  a  less  sum,  and  the  '  1808. 
present  action  brought  to  recover  damages  for  the  breach  of  ""e^^TngT" 
the  contract.  The  material  question  of  fact  was  whether  the  de-         -v. 
fendant  had  offered  a  performance  on  the  17th,  which  had  been     Tees. 
refused  by  Otto;  and  for  this  the  testimony  above  mentioned 
was  relied  on;  but  by  the  plaintiff's  counsel  it  was  said  to  be 
contradictory  and  inconsistent,  and  to  be  opposed  by  that  of 
another  witness  who  swore  that  the  reason  assigned  by  Tees  to 
him,  for  not  taking  possession  on  the  30th,  was  simply  because 
his  wife  thought  the  place  unlucky,  and  not  because  Mr.  Otto 
had  refused  to  abide  by  the  contract.    The  point  of  law,  which 
was  reserved  at  the  request  of  counsel,  was  whether,  under  the 
circumstances  of  the  case,  Otto  should  not  have  had  an  authori- 
ty in  writing  from  his  principal.  His  Honour  charged  the  jury, 
that  if  the   defendant  had  tendered  the  money  on  the   17th, 
which  Otto  had  refused,  he  would  have  been  no  longer  bound; 
but  that  if  he  was  merely  using  finesse  to  avoid  compliance  with 
his  contract,  they  should  find  for  the  plaintiff,  which  they  ac- 
cordingly did,  283  dollars  ~1  cents  damages. 

Exi'tng'  and  Sergeant  for  the  plaintiff.  The  naked  question 
is  whether  Otto^s  authority  should  have  been  in  writing.  The 
1st  section  of  the  act  of  frauds  and  perjuries,  which  embraces 
the  first  three  sections  of  the  29  Car.  2.  c.  3.  relates  wholly  to 
conveyances  of  an  interest  in  the  lands,  &c.;  and  it  requires 
that,  to  pass  an  estate  in  them,  the  conveyance  shall  be  put  in 
writing  and  signed  by  the  parties  or  their  agents  lawfully  au- 
thorized by  writing.  The  4th  section  of  the  English  statute 
then  provides  that  no  action  shall  be  brought  to  recover  dama- 
ges upon  any  contract  or  sale  of  lands,  unless  the  agreement 
shall  be  in  w  riting  and  signed  liy  the  party  to  be  charged  thcre- 
^vith,  or  by  some  other  person  by  him  lawfully  authorized. 
This  section  is  wholly  omitted  in  our  act.  So  that  it  was  the 
intention  of  our  legislature  to  leave  the  action  for  damages  as 
it  stood  at  common  law.  A  parol  agreement  for  the  sale  of 
lands  will  therefore  support  an  action  for  damages,  still  more  a 
parol  authority  to  an  agent  to  agree,  which  is  good  even  by  the 
English  statute.  Si/gc/en  56.  Bell  v.  Ajidmvs.  (a)  The  most 
that  is  required  by  the  29  Car.  2.  is  that  the  contract  shall  be 

(a)  4  Datl.  152 


452  CASKS  IN  THE  SUPREME  COURT 

1808.      signed  by  the  party  to  he  charged^or  his  agent.  Signing  liy  the 
~T~    ~,     other  party  is  unnecessary.  Hatton  v.  Gray  («),  Fozvlev.  Ffee^ 


Tres. 


Blered'ith  antl  S.  Levy  for  the  defendant.  The  object  of  the 
first  section  of  our  act  was  to  prevent  any  part  of  a  contract  in 
relation  to  lands,  from  resting  upon  parol  evidence.  The  wri- 
ting in  question,  which  if  it  was  any  thing,  was  a  sale  of  the 
lands,convev{  d  no  interest  to  either  partv,  for  want  of  a  written 
authority  to  the  agent.  It  is  good  for  nothing  as  to  the  purpose 
for  which  it  was  intended:  and  therefore  if  it  has  any  effect,  it 
must  he  against  the  intention  of  the  parties.  To  go  by  the  let- 
ter of  the  act  is  doing  injustice  to  its  spirit.  Its  terms  are  some- 
thing ambiguous;  but  its  evident  intention  was  to  cut  up  alto- 
gether parol  contracts  for  lands.  So  it  must  have  been  held  in 
Nicliolsori's  Lessee  v.  Miffin^  (c)  where  for  want  of  proof  of  a 
written  authoritv  to  the  ag'.nt,  the  plaintiff  was  nonsuited.  Bell 
v.  Andreivs  has  nothing  to  do  with  the  point;  for  the  only  materi- 
al cjuc  i^tion  there,  was  whether  the  payment  of  the  consideration 
might  be  proved  bv  parol  evidence.  It  is  essential  that  the  par- 
ty signing  should  have  some  evidence  in  his  hands  to  shew  the 
acquiescence  of  the  part)'  who  does  not  sign,  1  Poxo.  Conir. 286; 
and  this  is  not  contradicted  by  Hatton  v.  Gray^  for  there  one 
wrote,  and  the  other  signed,  Avhich  was  equal  to  a  signing  by 
both.  From  the  manner  in  which  the  reserved  point  embraces 
the  circumstances  of  the  case,  we  are  however  at  liberty  to 
press  them  for  a  new  trial;  and  although  the  four  days  are  past, 
yet  where  the  court  see  that  manifest  injustice  is  done,  they 
will  order  a  new  trial  of  their  own  accord.  There  was  in  fact 
no  contract.  The  agent's  declaration  on  the  17th  November^ 
when  the  defendant  must  have  tendered  the  money,  shews  that 
he  had  no  authority  of  any  kind.  What  the  plaintiff  did  after- 
wards is  immaterial;  for  on  that  day,  the  defendant,  fiiidingthat 
the  agreement  was  without  authority,  retracted  his  promise, 
which  he  had  a  right  to  do.  A  mere  promise  does  not  bind  till 
acceptance  by  the  promisee;  and  till  then,  the  promisor  hdiS  ^locus 
pan'itent'uc^  as  in  bids  at  auction,  and  may  retract.  1  Poiv.  Contr. 
544.  Payne  v.  Cave,  (r/)  Both  must  be  bound  or  neither.  The 
plaintiff  certainly  was  not  bound,  either  at  the  date,  or  on  the 

(a)  2  Chan.  Ca.  164.  (c)  2  Ball.  246. 

{b)  9  Ves.  jr.  351 .  {d)  3  D.  &  E.  149. 


OF  PENNSYLVANIA.  453 


17*th;  the  promise  was  therefore  destitute  of  mutuality,  and      1808. 
the  defendant  was  at  liberty  to  decline  when  he  did.  Cooke  v^ 
Oxky.  {a) 


Reply.   The  point  is  whether  under  the  circumstances  there 
should  have  been  a.  written  authority,  not  whether  there  should 
be  a  new  trial.    The  merits  were  decided  by  the  jury;  and 
even  if  they  were  with  the  defendant,  there  is  no  instance  in 
which  anew  trial  has  been  granted  by  the  court,  after  the  four 
days  have  passed  without  a  motion.  [Smith  J.  In  the  King  v. 
Holt^S  D.  ^  E.  438.   the  court  said,  they  would  themselves 
take  an  objection  to  the  verdict,  if  they  thought  substantial  jus- 
tice  had  not  been  done.]    That  was  a  criminal  case,  and  the 
opinion  of  the  court  is  confined  to  such  cases.    It  was  founded 
upon  the  King  v.  Gough^  where  Buller  said  the  proceeding  was 
irregular.  At  all  events,  it  is  confined  to  cases  of  extreme  and 
palpable  injustice;  of  which  there  is  not  a  trace  here.  First,  as 
to  the  locus  poenitenti*;  it  is  gone  the  instant  the  contract  is 
reduced  to  writing,  or  is  in  part  performed.  1  Fonbl.  \7\.  Then 
as  to  the  refusal  by  the  agent  and  his  want  of  authority;  it  is 
plain  the  jury  did  not  believe  the  defendant's  witness,  and  that 
they  thought  the  defendant   was  practising  a  trick.   Otto  told 
him  to  take  the  place  f/if/i,  and  the  plaintiff  assented  the  instant 
he  heard  of  the  agreement.   He  tendered  the  possession  and 
the  deed;  he   recognised  Otto   for  his  agent  from  ihe  outset, 
and  therefore  it   did  not  lie  with  the  defendant  to  deny  him. 
When  a  party  offers  to  perform,  no  case  is  to  be  found  where 
equity  has  inquired  whether  he  was  bound.  And  hence  the 
words  circumstances  of  the  case;  for  under  the  circumstances 
we  contended  that  no  authority  at  all  was  necessary,  as  the  acts 
of  the  agent  were  adopted.   I'hen  as  to  the  statute;  all  that  is  ne- 
cessary in  England^  is  that  the  party  to  be  charged,  has  sign- 
ed,  /'oti'/c  V.  Freeman  is  explicit,  and  has  not  been  answered. 
So  is  Hatton  v.  Graij^  for  the  writing  was  not  a  signing.  Haxv- 
kins  v.  Holmes  (b).  But  in  this  state,  the  contract  is  attended  by 
all  its  consequences  at  common  law,  except  passing  the  estate; 
so  that   it   is  not  nccessaiy  in   this  action,  that  there   should 
be  a  signing  by  either  party.    NicUolson\s  Lessee  v.  Mifflin  was 
an  ejectment  for  the  land,  and  therefore  writing  was  tsbtntial. 

(rt)  3  D.  C-  K.  649.  {b)  1  P.  Wim.  77V. 

Vol.  I.  3  M 


EwiNG 


V. 
1  EES. 


454  CASKS  IN  TlIi:  SUPREME  LOUin 

1808.  TiLGHiMAN  C.  J.  This  cause  was  tried  before  judge  Teates 

, ,  at  nisi  prius  in  Dixcmhir  1808;  and  on  the  trial  a  point  was 

.,,.         reserved,  on  which  it  is  now  brouglit  before  the  court. 
Tees.  The  action  was  brought  to  recover  damages  for  breach  of  'k 

written  agreement,  by  w  hich  the  delencUint  engaged  to  purchase 
a  tract  of  hmd  the  property  of  the  plaintiff.  The  agreement 
was  signed  by  the  defendant  and  by  Jacob  S.  Otto^  who  was 
alleged  by  the  plaintiff  to  be  his  agent.  It  was  objected  by  the 
defendant,  that  supposing  Otto  to  be  the  agent,  it  was  necessary 
that  his  authority  from  the  plaintiff  should  have  been  in  wri- 
ting. The  point  reserved  by  the  judge  was  "  whether  under 
"  the  circumstances  of  this  case,  J.  S.  Otto  should  not  have 
"  been  authorized  in  ivr'iling^  to  make  the  contract  on  which 
*'  the  suit  was  brought  to  recover  damages."  The  facts  in  the 
cause  were  to  be  decided  by  the  jury,  taking  it  for  granted  that 
the  authority  need  not  be  in  writing. 

The  act  of  assembly  "  for  prevention  of  frauds  and  perju- 
"  ries,"  on  which  this  point  arises,  provides  that  "  all  leases, 
"  estates,  interests  of  freehold  or  term  of  years,  or  any  uncer- 
*■'  tain  interest  of,  in,  or  out  of,  any  messuages,  manors,  lands, 
"  tenements  or  hereditaments,  made  or  created  by  livery  and 
"  seisin  only,  or  by  parol,  and  not  put  in  writing,  and  signed 
"  by  the  parties  so  making  or  creating  the  same,  or  their  agents 
"  thereunto  lawfully  authorized  by  writing,  shall  have  the  force 
"  and  effect  of  leases  or  estates  at  will  only,  and  shall  not  either 
"  in  law  or  equity  be  deemed  or  taken  to  have  any  other  or 
"  gi-eater  force  or  effect,  except  leases  not  exceeding  the  term 
''  of  three  years  from  the  making  thereof." 

It  is  evident  that  this  provision  extends  only  to  the  estate 
intended  to  be  passed.  No  estate  in  lands  shall  be  conveyed  by 
one  person  to  another,  unless  the  agent  is  authorized  by  wri- 
ting. But  it  is  one  thing  to  convey  an  estate,  and  another  and 
very  different  thing  to  make  an  agreement  that  you  will  convey 
it.  It  might  be  good  policy  to  establish  certain  solemnities, 
without  which  the  title  of  land  could  not  be  transferred;  because 
the  peace  and  happiness  of  society  are  promoted  by  the  clear- 
ness and  facility  with  which  the  titles  of  real  estate  may  be  as- 
certained, and  by  preventing  those  frauds  and  perjuries  which 
would  inevitably  take  place,  if  after  a  great  length  of  time  it 
was  permitted  to  establish  a  title  by  parol  evidence  only. 
Whereas,  an  action  for  damages  for  not  performing  a  contract,. 


OF  PENNSYLVANIA.  455 

is  of  much  less  moment.  The  jury  may  give  such  damages  as,  1808. 
under  the  circumstances  of  each  case,  appear  reasonable,  and  "TT" 
these  damages  will  often  be  very  small;  and  there  is  less  dan-  -j,_ 
ger  of  perjury,  because  those  actions  are  limited,  so  that  they  Te^s. 
must  be  commenced  in  six  years.  I  should  think  the  case  suf- 
ficiently clear,  if  it  was  taken  upon  the  act  of  assembly,  without 
any  other  consideration;  but  it  is  still  clearer,  when  we  turn  to 
the  English  statute  of  frauds  and  perjuries,  29  C.  2.  c.  3.  It  is 
plain  that  our  legislature  had  that  statute  before  them,  when 
they  framed  the  act  in  question;  because  that  part  of  our  law 
which  I  have  recited,  is  copied  very  nearly  verbatim  from  il>e 
English  law.  But  there  is  a  total  omission  of  the  fourth  section 
of  the  English  statute,  which  enacts,  that  no  action  shall  be 
brought  to  recover  damages  upon  any  "  contract  or  sale  of 
"  lands,  tenements,  or  hereditaments,  or  any  interest  in  or  con- 
"  cerning  the  same,  unless  the  agreement  on  which  it  is  brought, 
"  or  some  memorandum  or  note  thereof,  shall  be  in  writing, 
"  and  signed  by  the  party  to  be  charged  therewith,  or  some 
"  other  person  thereunto  by  him  lawfully  authorized."  It  is 
impossible  that  this  omission  should  have  been  accidental.  It 
must  have  been  intended  to  leave  the  common  law  unaltered, 
as  to  the  redress  whicli  it  aft'ords  for  breach  of  a  parol  contract, 
by  recovery  of  damages.  Agreeable  to  this  construction  is  the 
sentiment  expressed  by  this  court,  in  the  case  of /?('// v.  y^/n- 
dmvs^  4  Dull.  152.;  although  the  point  now  in  contest  is  diffe- 
rent from  that  which  was  then  before  them.  The  same  con- 
struction has  been  given  in  several  cases  at  nisi  prius,  in  which 
damages  have  been  recovered  on  parol  contracts  for  sale  of 
lands. 

But  the  defendant's  counsel  have  contended  that  if  the  opi- 
nion of  the  court  on  the  reserved  point  is  against  them,  they 
ought  to  have  a  new  trial;  l)ecause  they  proved  to  tin-  jury  that 
Otto  had  no  authority  ia  make  tlie  sale  at  the  time  the  writing 
was  signed,  nor  at  the  time  when  the  first  pa\  ment  was  to  have 
been  made  by  the  defendant.  In  the  first  place  it  must  be  re- 
marked, that  no  motion  for  a  new  trial  was  made,  and  the  four 
days  for  making  it  are  out,  so  that  no  motion  can  now  be  re- 
ceived. It  has  been  urged,  that  still,  if  the  court  perceive  by 
the  judge's  report  of  this  case,  that  manifest  injustice  has  been 
done  to  the  defendant,  they  will  take-  the  matter  up  themselves, 
and  order  a  new  trial.   All  that  I  shall  say  at  present  is,  that 


456  CASKS  IN  THE  SUPREME  COURT 

1S08.  '*  "^"st  be  an  exceedingly  clear  error  indeed  that  should  induce 
"IETv-Tng  "'^  ^^'  interfere,  after  the  four  days  have  expired  without  a 
1.,  motion  lor  a  new  trial.  Nor  will  I  commit  myself  by  saying, 
Tkrs.  whether  or  not  I  should  think  myself  justified  in  doing  so,  in 
any  case  of  a  civil  nature.  It  is  enough  that  in  the  present  case, 
I  am  by  no  means  satisfied  that  any  injustice  has  been  done  to 
the  defendant.  There  is  no  proof  that,  as  his  counsel  contend, 
he  tendered  the  money  due  for  tlie  first  payment,  and  thjtt  Otto 
refused  to  receive  it  because  the  plaintiff  had  not  ratified  the 
contract;  nor  even  that  he  had  the  money  ready  to  tender.  The 
testimony  of  the  witness,  on  whom  he  relies  to  prove  ihsii  Otto 
said  he  had  no  authority  to  make  the  sale,  is  not  free  from  con- 
siderable inconsistency.  It  was  established  beyond  doubt,  that 
as  soon  as  the  plaintiff  was  informed  of  the  contract,  which  was 
not  more  than  ten  days  from  its  making,  he  gave  his  assent  to 
it;  that  possession  was  offered  to  the  defendant  on  the  thirtieth 
of  Novetnbcr^  the  day  appointed  for  that  purpose;  and  that  at 
the  time  fixed  for  making  the  last  payment,  the  plaintiff  ten- 
dered the  defendant  a  deed  of  conveyance  in  fee  simple.  Thus 
every  act  of  the  plaintiff  tended  to  a  faithful  performance  of 
his  part  of  the  agreement;  while  the  defendant's  whole  conduct 
evinced  an  intention  to  flj-  off.  And  what  has  great  weight  with 
me,  judge  Tcatcs^  before  whom  the  cause  was  tried,  and  who 
had  a  better  view  of  the  evidence  than  we  now  have,  is  well 
satisfied  that  injustice  has  not  been  done  by  the  verdict.  My 
opinion  therefore  is,  that  a  new  trial  should  not  be  granted. 

Yeates  J.  concurred  in  opinion  with  the  chief  justice,  that  it 
was  not  necessary  that  the  authority  of  the  agent  should  be  in 
writing.  He  went  at  the  same  time  into  the  merits,  for  the  pur- 
pose of  shewing  that  no  injustice  had  been  done  by  the  verdict, 
and  that  e^-en  if  the  court  could  indulge  the  defendant  with  a 
relaxation  of  the  rule,  he  was  not  entitled  to  a  new  trial  by  the 
evidence. 

Smith  J.  expressed  the  same  opinion  upon  the  point 
reserved;  Init  he  thought  that  inasmuch  as  the  question 
was  so  reserved  as  to  let  in  "  the  circumstances  of  the 
case,"  and  upon  those  circumstances  there  was  so  little 
evidence  of  any  contract  at  all,  that  manifest  injustice  had 
been  done  to  the  defendant.    His  Honour  said,  *'  Had  the 


OF  PENNSYLVANIA.  457 

point  reserved  been  worded  in    the    usual    form,  I   think   I      1808. 
should  have  been  compelled  to  give  my  voice  in  favour  of  the     ^^^      ] 
plaintiff.  But  the  words  *•'  under  the  circumstances  of  the  case"         -y. 
have  some  meaning,  and  were  inserted  for  some  purpose.  If  it     Tees. 
was  not  intended  thereby  to  empower  the  court  to    investi- 
gate and  decide  on  the  merits,  they  were  worse  than  nuga- 
tor}';  they  tended  to  perplex.   I  am  glad  therefore  that,  if  I 
have  discpvered  during  the  course  of  the  argument  that  injus- 
tice has  been  done,  I  am  at  liberty  to  give  mv  voice  for  a  new 
trial,  although  it  has  not  been  moved  for  within  the  four  davs. 
More  than  one  of  the  court  during  the  argument  said  that  a 
motion  ought    to  have  been  made;  but  on  examination  I  re- 
joiced that  the  strong  inclination  of  my  mind,  the  justice  of  the 
case,  was  not  fettered  by  form.  Let  it  not  be  said  that  this  re- 
laxation of  the  rule  is  confined  to  criminal  cases.  The  case  of 
Smith  v.  Gilman^  Stra.   995.  Birt  v.  Barlow,  Doug:  162.  and 
the  reasoning  in  other  cases,  shew  that  there  is  no  distinction 
between  civil  and  criminal  cases,  nor  ought  there  to  be  any. 
I  am  therefore  of  opinion  that  there  ought  to  be  a  new  trial." 

Brackenridgf.  J.  On  the  reserved  point  I  have  no  doubt. 
Parol  evidence  may  be  given  of  an  agreement  to  convey  real 
estate,  upon  an  action  on  the  contract,  so  as  to  entitle  to  dama- 
ges; this  not  being  within  the  act  of  frauds  and  perjuries.  Nor 
is  there  any  thing  in  the  expression  "  circumstances  of  the  case," 
that  will  enable  us  to  take  them  into  view  in  considering  the 
point  reserved.  Hut  whether  the  circumstances  of  the  case  may 
be  taken  into  view  at  this  stage,  a  new  trial  not  having  been 
moved  for  within  the  four  days,  is  another  matter.  It  is  a  rule, 
that  although  the  motion  cannot  be  made  after  the  four  davs, 
yet  the  court  arc  not  prevented  by  this  rule  from  granting  of 
tliem.sclves  a  new  trial,  if  from  a  view  of  the  evidence  they  sec 
reason  for  it.  But  I  am  not  i)repared  to  say  that  this  verdict  is 
so  palpably  against  the  evidence  as  to  make  it  clear  that  a  new 
trial  ought  to  be  granted;  and  I  concur  in  refusing  it. 

New  trial  refused. 


4-58 

1808. 

Afnrulnr, 

Dcccinlur 

36th. 

The  rule  of 

this  court  re- 

quirnig  ten 

CASES  IN  THE  SUPREME  COURT 


HeiVrv  against  Kennedy. 

T~^HE  plaintiff  obtained  a  verdict  in  this  cause  on  the  16tlr 
-*-  November  last,  at  a  nisi  prius  for  the  county  of  Philadelphia; 
davs'"notice  ^"^  °"  ^^^^  ^^y'  Dallas  for  the  defendant,  moved  for  a  rule  to 
in  uW/;//_c  be- shew  cause  why  there  should  not  be  a  new  trial;  the  verdict 
term,  of  :m  having  been  in  direct  opposition  to  the  charge  of  his  Honour, 
intended       judge  Yeates,  upon  the  law. 

motion  for  -i 
new  tiiid,  in 

tauses  tried      M'Shane  and  Tod,  for  the  plaintiff,  contended  that  the  mo- 
at nisi  prius,    .  ...  r   •    •  .  .         ,        . 
applies  to      tion  coulcl  not  be  received,  no  notice  oi   it  in  xurittng  having 

causes  tried  been  given  ten  days  before  the  commencement  of  the  term,  ac- 

at  nisi  prius  .  i  /•    i  • 

in  the  county  cording  to  rule  34  or  this  court. 

oi  Philadel- 
phi  a. 

Dallas  answered,  that  he  had  given  parol  notice  of  his  in- 
tended motion  in  proper  time,  and  had  entered  a  memorandum 
of  it  upon  his  notes.  That  this  was  sufficient  in  causes  tried  in 
Philadelphia,  as  the  rule  was  made  when  courts  of  nisi  prius 
were  held  in  all  the  counties,  and  was  merely  intended  to  guard 
against  surprise  or  inconvenience  when  the  cause  was  tried  at 
a  distance.  But 

Per  Curiam.  The  rule  contains  no  such  distinction.  The 

parol  notice  will  not  answer;  and  therefore  the  motion  cannot 

be  admitted. 

Motion  rejected. 


Thursday,  l^A TIMER  and  YaRD  Clgainst  RiDGE. 

December 

To  entitle  a   T^HIS  and  a  cross  action  by  Ridge  against  Latimer  and  Yard, 

party  to  dc-     J-     were  referred  under  a  rule  of  court  to  arbitrators,  who 

■ferces'that'   found  against  Ridge  in  both  suits;  and  the  exception   upon 

they  will  al-  ■which  it  was  now  attempted  to  set  aside  the  award  was,  that  the 

trprocTucT'^^  arbitrators  had  refused  to  allow  Ridge  sufficient  time  to  produce 

testimony,     his  evidence. 

he  must 

shew  them  what  it  is,  why  he  is  not  able  then  to  produce  it,  and  that  he  expects  to 

obtain  it  in  a  reasonable  tiore.  A  naked  alleg-ation  that   he  desires  further  time  is  not 

sufficient. 


OF  PENNSYLVANIA.  459 

From  the  examination  of  one  of  the  referees  it  appeared,  that      1808. 
at  their  first  meeting  in  Apr  dor  May  1898,  the  parties  were  Latimer 
present,  and  certain  documents  rehiting  to  a  transaction  in  the  -o. 

West  Indies  were  read,  particularly  the  deposition  of  Richard  Ridge- 
Foster,  taken  under  a  commission  from  this  court,  returned 
and  filed  the  10th  November  1806.  That  on  their  second 
meeting,  the  1 1th  Jidy,  Ridge  did  not  attend,  but  wrote  to  Mr. 
Yard,  one  of  the  parties,  that  he  was  not  prepared,  for  want  of 
papers.  That  on  the  15th  Septeynber,  the  referees  again  met, 
when  the  counsel  of  Ridge  addressed  to  them  a  letter,  stating 
that  Ridge  had  never  seen  the  evidence  of  Foster,  until  it  was 
produced  before  the  referees,  and  desiring  further  time  to  pro- 
cure testimony.  That  they  again  met  on  the  5th  November, 
when  the  counsel  of  Ridge  a  second  time  wrote  for  a  continu- 
ance, Ridge  not  having  obtained  his  testimony;  and  that  they 
met  finally  on  the  19th  November,  when  they  received  alette* 
from  Ridge  himself  to  the  same  effect.  On  this  day  they  con- 
cluded their  awatd,  having  refused  further  time.  Ridge  did 
not  personally  attend  either  of  the  three  last  meetings. 

Brown,  for  the  defendant,  read  the  affidavit  of  Jost-ph 
Hutchitison,  the  witness  whom  Ridge  was  desirous  of  opposing 
to  Foster,  stating  his  knowledge  of  the  matter,  his  absence 
from  Pliiladelpliia  for  some  months,  and  his  arrival  here  on 
the  30th  November  1808.  He  then  contended  that  the  refei-ecs 
had  precipitated  the  hearing,  contrary  to  the  interests  of  jus- 
tice and  the  rules  of  law.  It  was  a  case  he  said  involving  the 
character  of  his  client;  and  all  he  desired  was,  that  the  same 
referees  should  hear  this  witness,  who  was  now  for  the  first  time 
in  the  defendant's  power. 

Tilghman,  in  support  of  the  award,  said  that  the  refusal 
oi  Ridge  prrsonally  to  attend  the  meeting  of  the  referees,  and 
confining  the  communication  to  letters,  would  alone  have  jus- 
tified the  referees  in  refusing  time;  for  they  had  a  right  to 
question  him  u|)on  any  point  lluy  thought  materially  connect- 
ed with  his  demand  of  lime,  to  ascertain  whether  it  was  not  an 
affectation  of  delay.  Hut  further,  the  letters  did  not  state  how 
much  time  he  wanted,  for  what  particular  object  he  wanted  it, 
what  were  his  expectations  of  procuring  testimony  by  delay, 
Tior  what  pains  he  had  before  taken  to  provide  iu  He  was  in 


460  CASES  IN  THE  SUPREME  COURT 

1808.      f'>ct  guilty  of  laches  at  the  outset;  Foster's  testimony  had  been 

Latimer   "<^^ily  two  years  returned  under  a  commission  in  his  own  suit» 

V.         when  it  was  first  read  to  the  referees,  and  had  also  been  five 

Ridge,     months  before  them,  when  a  continuance  on  that  account  was 

first  asked. 

Hopk'inson  replied,  that  no  objection  was  made  at  the  time  to 
the  absence  oi  Ridge ^  or  to  his  communications  by  letter.  The 
referees  had  in  fact  acknowledged  the  propriety  of  the  request, 
by  granting  time,  but  had  erred  in  granting  it  for  six  weeks 
only,  when  a  continuance  in  court  would  have  given  three 
months.  Hutchinson  was  absent  during  the  whole  period  of  the 
reference,  and  returned  ten  days  after  the  award.  Ridge  did  not 
know  of  his  evidence  until  the  15th  September^  the  day  on 
which  his  counsel  asked  for  time  to  procure  it.  There  were  of 
course  no  laches  in  the  case;  and  it  results  to  the  simple  ques- 
tion whether  reasonable  time  was  allowed. 

TiLGHMAN  C.  J.  The  exception  is  that  the  referees  have 
acted  improperly  in  not  giving  further  time.  We  think  that  the 
exception  is  not  supported,  because  Ridge  did  not  inform  the 
referees  what  evidence  he  wanted,  the  reason  why  he  was  not 
able  then  to  produce  it,  and  that  he  expected  to  be  able  to  pro- 
duce it  in  a  reasonable  lime.  A  court  of  justice  would  not 
have  granted  a  continuance,  unless  all  these  circumstances  had 
been  satisfactorily  shewn.  This  court  must  decide  on  general 
principles.  It  is  to  be  distinctly  understood  that  a  naked  alle- 
gation, that  a  party  desires  further  time  to  produce  testimony, 
is  not  sufficient.  It  would  tend  to  infinite  delay. 

Per  Curiam,  Award  confirmed. 


OF  PENNSYLVANIA.  461 

1808. 


II  ■  TT  Friday, 

Graham  and  another  ogatmt  Hamilton.  December 

30th. 

EXCEPTIONS  to  an  award  of  referees.  The  referees  made  ^^j^^^'^' "^f^^^^^^ 
up  an  award  in  favour  of  the  plaintiffs,  and  returned  itu.eactof 
into  court  with  their  names  subscribed  to  it,  but  rcithout  ^^"^^•jl'^f^f^^^^ 
The  defendant  fd^-d  several  exceptions;  but  the  only  one  noticed  .idminister- 
upon  the  argument,  was  the  omission  of  seals;  required  by  the  ^j|^^°J^^^^^^- 
following  clause  in  the  3d  section  of  the  act  of  21  March  ISOe.jxnscd  with 
7  St.  Larvsy  559.  "  Th,;  referees,  chosen  in  pursuance  of  ^^e  ['.>;^^"J  P^fjj  .^ 
"  directions  of  this  act,  shall  be  sworn  or  affirmed  (imless  ^/ze no  necessity 
^'  same  shall  be  dispensed  zvith  by  the  consent  of  the  parties)  to  ^'^^.^j.^^J'g^iould 
"try  and  determine  the  cause  referred  to  them,  and  a  just  h    '.nacr 
"  axvard  make  out  under  the  hands  and  seals  of  a  majority  of^''^- 
"  them,  agreeably  to  the  terms  of  the  submission." 

The  cause  now  coming  on  to  be  heard,  it  appeared  in  evi- 
dence that  the  oath  had  been  dispensed  with  by  consent  of  par- 
ties; and  the  sole  question  for  the  court  was  whether  the  seals 
were  not  dispensed  with  as  a  consequence. 

Condij  for  the  plaintiffs.  The  clause  of  the  act  is  connected, 
throughout.  There  was  no  obligation  to  make  an  award  under 
seal,  distinct  from  that  created  b}'  the  oath;  and  as  the  oath  was 
waived,  so  was  the  duty.  It  is  true  the  oath  is  to  make  a  just 
award  :  and  so  it  may  be  urged  against  this  construction  that 
that  also  would  be  waived.  iJut  the  distinction  is  between  a 
moral  duty  not  created,  but  merely  enforced,  by  the  oath,  and 
a  duty  which  has  no  existence  except  under  the  oath.  The  ce- 
remony, moreover,  is  entirely  useless;  and  therefore  the  court 
should  favour  that  construction  which  gets  rid  oi  it. 

.Serifeant  for  the  defendant.  Even  if  the  clause  is  connected, 
still  the  oath  is  merely  a  sanction  to  the  whole  duty,  which  re- 
mains, though  the  sanction  be  waived.  Tiiis  is  evident  from  the 
mode  in  which  a  just  award,  and  the  ceremony  of  its  being 
under  hand  and  seal  are  joined.  It  is  the  same  as  if  the  legis- 
lature had  prescrilied  the  entire  duty  as  it  stands,  and  had  then 
directed  the  oath  to  perforin  it,  unless  it  should  be  dispensed 
with  by  the  parties.   But  the  clause  is  not  connected.  The  oath 

Vol.  I.  3N 


TON. 


462  CASES  IN  THE  SUPREME  COURT 

1808.      '8  t"  *'■>'  ^^^^  dftennine  the  cause  ;  and  dispensing  with  it  only 

"Graham   '"^^'*'^'^s  them  from  an  absolute  duty  to  do  this.   If  the  duty  of 

\..         affixing  a  seal  is  comprehended  by  the  oath,  so  is  the  duty  of 

Hamil-    making  a  ji'st  award  ;  and  then  the  legislature  is  involved  in 

the  absurdity  of  authorizing  the  parties  to  dispense  with  ^Just 

award.   Had  the  legislature  intended  to  enforce  the   several 

duties  by  the  oath,  the  phrase  would  have  read,  "  and  a  just 

award  to  make  out,"  &c. 

Per  Curiam.  The  making  a  just  award  under  hand  and 
seal  is  a  part  of  the  oath;  and  there  is  no  absurdity  in  imposing 
on  the  referees  an  oath  to  perform  their  duty  justly,  or  in  re- 
lieving them  from  the  oath,  if  the  parties  sufficiently  confide  in 
their  honesty  without  it.  They  are  still  bound  substantially  to 
do  their  duty,  after  the  oath  is  waived;  but  there  is  no  direc- 
tion to  adhere  to  the  ceremony  of  a  seal,  independent  of  the 
oath;  that  being  dispensed  with,  so  is  the  seal. 

Award  confirmed. 


Baker's  Case. 


f'ridtiy, 

Decenibcf 

SOUi. 

A  petitioner  -pj  AKER  presented  his  petition  to  this  court  under  the  act 

for  rciior  Yf  . 

under  the  in-  -*^  of  April  1 798,  praymg  for  the  relief  prescribed  by  that  and 

^''l^^"''^^^^"^  other  insolvent  acts  of  the  general  assembly.  The  schedule  an- 

1798,  must    nexed  to  his  petition  set  forth  that  he  had  no  estate  of  any  kind, 

exhibit  to      having  made  an  assignment  of  all  his  property  on  the  13th  Oc- 

tlie  court  a  "  °  .  . 

sUitemeiitin  tober  1808,  Avhen  he  was  discharged  under  the  insolvent  acts 

-ii-ntirg  ni  h\s  ^y  the  common  pleas  oi  Philadelphia  county.  His  object  at  this 
tlie  means      time  was  to  bar  two  creditors  whom  he  had  omitted  to  serve 

whereby  he      |  j^  notice  upon  his  former  discharge. 

becaiTie  in-  '  ^ 

solvent.  The  application  now  coming  on  to  be  heard,  the  chief  justice 

vho^ri"'^       asked  whether  the  petitioner  had  made  any  statement  in  writing 

propcitv        of  his  losses  and  the   means  whereby  he  Ixecame  insolvent, 

nevmhekss  agreeably  to  the  2d  section  of  the  act  of  4th  April  1798.  This 

entitled  to     section  directs  that  the  insolvent  shall  exhibit  to  the  court  "  a 

ofUichisol-  "j"st  and  true  account  of  his  debts,  credits  and  estate,  real 

vent  acts.      *'  and  personal,  containing  a  statement  of  his  losses  and  the 

"  means  whereby  he  became  insolvent." 


3 


OF  PENNSYLVANIA.  465 

Chaunceij^  for  the  petitioner,  answered  that  he  had  not,  but      18O8. 
that  he  was  ready  to  answer  upon  oath  any  interrogatories    g^j^^-j,^ 
upon  that  head.  He  said  that  the  written  statement  very  rarely      Case, 
in  practice  accompanied  the  proceedings,  and  that  in  this  par- 
ticuhir  the  construciion  of  the  law  seemed  to  be  settled  by  the 
practice,  in  like  manner  as  in  respect  to  the  insolvent's  estate; 
for  although  the  letter  seemed  to   require  that  he  should  have 
some  property,  yet  relief  had  uniformly  been  extended  to  ap- 
plicants who  had  none. 

Per  Curiam.  There  must  be  a  statement  in  writing-  of  his 
losses  and  the  means  whereby  he  became  insolvent.  A  matter, 
so  essentially  connected  with  the  discharge  of  an  insolvent,  is 
not  to  rest  upon  verbal  explanation,  of  which  no  trace  remains 
upon  record.  The  court  owe  it  to  the  public  to  prevent  this 
statement  from  falling  into  disuse,  or  becoming  a  nominal 
ceremony.  As  to  the  circumstance  of  the  petitioner's  having 
no  property,  it  has  been  held  to  be  within  the  spirit  of  the  law; 
relief  has  often  been  afforded  in  similar  cases. 

The  written  statement  not  having  been  usually  exhibited 
lierctofore,  the  court  gave  Baker  until  the  next  day  to  prepare 
and  file  it;  l)ut  they  said  they  would  have  it  understood  here" 
after  that  writing-  was  essential. 


Hughes  ap-ainst  Heiser. 


19  ,      r-  Drcciuber 

20 
96 


In  Lrror.  31jj(_ 


bl- 
oc- 


WRIT  of  error  to  the  common  pleas  of  Berks  county. To  supporf 
II    ■  .u        t    •    .-ir   II  I  I       1  •  •         :m  action  oj 

tieiser^  the  piamtin   below,  brought   his  action  ag^mst  ^1,^.  ^..,gj.  Cm. 

Ilitirhes  to  recover  damages  for  obstructing  the  navigation  of  <li»m:ij;'c  oc- 

the  Iiit(  Sc/u/ijliill.  The  declaration  set  forth,  that  by  an  act  of  .j,^,,,,,,',,,,^ 

assembly, passed  March  1 , 1 8(X),  Biq^  .Scliuijlkill,  from  the  mouth  nnisniu  c,  it 
f  ,,  .  ,  ,  1    '    y.         "  •  1  •     is  not  iicccs- 

01  Norwei^tan  creek  to  where  the  6a/«7i'n'.sr// road  crosses  it,  „.„.y  that  ih« 

wa.s  made  a  public  highway  for  the  passage  of  boats  and  rafts;  ^l='"'='K'i^'  «"»• 

t:iim<l 


l:iim<l 
sluxiUl  have 


l»r<n  direct;  if  is  (  noiiji^li  if'it  wnscovser/tuntiui' 

Till-  plaiiilif]  (ifcland  tliat  lie  had  prcparcil  raflH,  willi  inlcIU  to  luivijyatr  llicm  down  .'* 
jiviT,  wliicli  was  a  pnhlic  hijfhwa);  and  thut  hi;  did  navi^'ate  tlicrn,  inilil  Ik-  c;imc  to  a  (\nm 
erected  by  the  tl',f(;ndant,  hy  wliich  he  was  prc^vcntid  from  j)as';i»ij^  down  the  river  wil^i 
Ills  rafts     liild, that. lliis  is  sunicicnl  special  danial,'-c  to  suppoit  an  action. 


4.61  CASES  IN  THE  SUPRKME  COURT 

1808.      ^vitli  SLpyoviso^  that  the  act  shouldnot  be  understood  to  prevent 
"Tt  anv  person,  possessing  hmds  on  the  river,  who  before  the  act 

^.  had  authority  to  erect  a  dam,  Irom  erecting  such  dam  or  clams 

Heiskr.  as  he  might  think  proper;  provided  that  such  dam  were  con- 
structed and  kept  in  njjair  with  a  proper  slope  and  lock,  that 
the  navigation  shouldnot  I)0  injured,  nor  the  fish  prevented 
from  passing.  It  ilu  n  stated  that  Hughes  on  the  1st  November 
1800,  made  a  dam  of  the  height  of  eight  feet  across  the  Big 
Sc/nn/lkill Within  the  limits  above  mentioned,  without  a  proper 
slope  or  lock,  so  that  it  injured  the  navigation,  and  prevented 
the  passing  of  fish;  and  that  he  kept  up  and  maintained  the  dam 
from  that  time  until  the  impetration  of  the  writ.  It  then  pro- 
ceeded as  follows:  "■  And  whereas  the  aforesaid  Ulrkh  He'iser^ 
"  after  the  passing  of  the  act  of  the  legislature  aforesaid,  and 
'*  after  the  dam  aforesaid  was  erected  as  aforesaid  by  the  said 
"  Hugh  Hughes^  to  wit  on  the  1st  day  of  Julij  1801  at  the 
"  county  aforesaid,  had  provided  for  himself  a  large  quantity  of 
"  pine  boards,  to  wit  50,000  feet,  and  a  large  quantity  of  tim- 
"  ber  of  various  kinds,  and  had  the  same  pine  boards  and  tim- 
"  ber  made  into  three  rafts,  in  the  aforesaid  Big  Schuylkill  in 
"  the  county  aforesaid,  above  the  dam  so  as  aforesaid  erected 
"  by  the  said  Hugh  Hughes^  and  the  said  Ulrich  Heiser  did 
"  then  and  there  intend  to  navigate  the  rafts  aforesaid  down 
"  the  Big  Schuijlkill  below  the  mouth  of  Norwegian  creek 
"  aforesaid;  and  the  said  Ulrich  Heiser  further  saith  that  on  the 
"  first  day  of  yiily  aforesaid  at  the  county  aforesaid,  the  water  of 
"  the  said  Big  Schuylkill  th^tn  being  unusually  high,  he  the  said 
*'  Ulrich  Heiser  did  navigate  the  rafts  aforesaid  containing  the 
"  boards  and  timber  aforesaid^  down  the  river  Schuylkill  to  the 
"  dam  so  as  aforesaid  erected  kept  up  and  maintained  contrary  to 
"  the  act  aforesaid  by  the  said  Hugh  Hughes^  which  rafts  were 
"  then  and  there  of  a  proper  and  convenient  form  for  the  navi- 
'*  gation  of  the  said  river;  and  the  said  Ulrich  Heiser  does  aver 
"  that  the  aforesaid  dam,  so  as  aforesaid  by  the  said  Hugh 
'•'•  Hughes  erected,  was  by  him  the  said  Hugh  Hughes  kept  up 
"  and  maintained  on  the  day  aforesaid  at  the  county  aforesaid, 
"  without  a  proper  slope  or  slopes,  lock  or  locks,  and  contrary 
'*  to  the  act  aforesaid;  so  that  as  well  rafts  as  boats  were  hin- 
"  dered  and  entirelv  prevented  from  passing  down  the  said  Big 
••'  Schuylkill.  And  he  the  said  Ulrich  Heiser  says,  that  he  7vas 
""  then  and  there,  by  the  dam  aforesaid,  erected  and  kept  up  by  the 


OF  PENNSYLVANIA.  465 

"  said  Hugh  Hug-hes^preventecl from  passing dorun  the  said  Big      \  gos. 

"  Schuidkill  -with  his  rafts  aforesaid.,  to  the  dam;'.B:e  of  the  said~iT 

•'  J       J  '  t>  Hughes 

"  U<riih  Reiser  two  hundred  dollars  Sic."  -j,. 

The  jury  found  for  the  plaintiff  forty  pounds  damages.  Heiser. 

Evans  and  IngersoU  for  the  plaintiff  in  error.  The  declara-  ' 
tion  contains  no  cause  of  action.  It  is  founded  on  a  common 
nuisance,  and  therefore  cannot  be  maintained,  except  for  a  par- 
ticular, direct  injurv,  in  which  case  x\\(t  per  quod  is  the  gist. 
That  the  dam  was  a  common  nuisance,  and  that  Hughes  might 
have  been  indicted  for  it,  is  abundantly  clear.  Co.  Litt.  56.  a. 
3  Black.  Com.  219.  The  damage  being  common  to  all  the  citi- 
zens, no  one  can  assign  his  proportion  of  it,  unless  he  has  re- 
ceived an  injury  both  particular  and  direct.  In  the  present  case 
there  is  no  particular  damage  whatever.  If  Heiser  may  sue, 
fifty  others  may  do  the  same;  for  all  persons  passing  down  the 
river  must  be  obstructed.  It  is  not  that  he  may  not  have  suffered 
inconvenience,  but  that  he  has  suffered  an  inconvenience  com- 
mon to  many;  and  therefore  to  avoid  a  multiplicity  of  suits,  the 
law  turns  him  to  an  indictment.  In  the  next  place,  the  damage 
is  consequential.  No  harm  is  charged  to  have  been  done  to  the 
rafts,  or  directly  to  the  owner;  and  if  any  was  sustained,  it 
was  the  consequence  of  delay,  which  is  not  sufficient.  In 
Paine  v.  Partrich  (a)  the  court  put  this  case,  ''  that  if  a  high- 
"  way  be  so  stopt,  that  a  man  is  delayed  in  his  journey  a  little 
"  while,  and  b)'  reason  thereof  he  is  damnified,  or  some  impor- 
"  tant  affair  mglected,  this  is  not  such  special  damage  for 
"  which  an  action  on  the  case  will  lie;  a  particular  damage  to 
"  maintain  the  action,  7?;?/.sf  he  direct  and  not  consequential;  as  for 
*'  instance,  the  loss  of  a  horse,  or  some  corporal  hurt,  in  falling 
"  into  a  trench  in  the  highway."  To  the  same  purpose  is  Hubert 
v.  Groves^  {b)  where  it  was  laid,  that  by  the  obstruction  of  the 
road,  the  plaintiff  was  obliged  to  carry  his  coals  and  timber,  by 
a  circuitous  and  inconvenient  way;  and  he  was  nonsuited.  So 
is  Bull.  N.  P.  20.  It  is  however  agreed  in  all  cases  where  special 
damage  of  some  kind  is  nrccssary,  that  it  should  be  laid  with  a 
per  quod^  the  business  of  which  is  to  close  the  action,  and  shew 
the  cause  of  it.  It  irj  so  in  slander,  where  the  words  are  not 
actionable  in  themselves;  and  the  rule  is  the  same  in  a  common 

(rt)  Canh.  194.  ib)  1  F.sp.  118 


466  CASES  IN  THE  SUl»REME  COURT 

1808.      "uisanccj  because  in  both  cases,  it  is  the  special  damage  that 
~TT  ~  supports  the  action.  The  case  of  hcson  v.  Moore^  (o)  in  whicU 

^,.  the  court  was  divided  in  opinion  whether  it  was  sufficient  spe- 
Heiskk.  cial  damage  to  hiy,  that  by  the  obstruction  in  the  highway,  the 
plaintiff's  carts  for  carrying  his  coals  could  not  pass,  by  which 
he  lost  the  benefit  and  profit  of  his  colliery,  and  his  coals  were 
deteriorated,  is  distinguishable  from  the  present  case  in  this^ 
that  there  it  was  laid  with  ?i.  per  quod.,  and  the  damage  was  well 
set  forth.  Here  the  damage  is  not  special;  and  even  the  general 
damage  is  not  connected  by  a  per  quod  with  the  dam.  Then 
as  to  the  effect  of  the  verdict:  It  helps  a  cause  of  action  or  title 
defectively  set  forth,  but  not  where  there  is  no  title  at  all.  In 
the  former  case,  the  proof  of  such  circumstances  as  are  neces- 
sary to  complete  the  title  imperfectly  stated,  may  be  presumed 
to  have  been  made  at  the  trial;  but  if  the  plaintiff  omits  to  state 
his  title  altogether,  it  need  not  be  proved,  and  cannot  be  pre- 
sumed. Rushton  V.  Aspinall.  (Ji)  As  where  the  scienter  was 
omitted  in  an  action  for  keeping  a  bull  that  used  to  run  at  men, 
the  verdict  did  not  cure.  Buxendin  v.  Sharp,  (c)  Nothing  is  to 
be  presumed  after  verdict,  but  what  is  expressly  stated  in  the 
declaration,  or  what  is  necessarily  implied  from  those  facts 
which  are  stated.  Spieres  v.  Parker  (d\  Bishop  v.  ^rt?/- 
ward  (e).,Stennellv.  Hog-g  (f).  Here  no  special  damage  is 
stated,  nor  can  it  be  implied. 

Dallas  for  the  defendant  in  error.  I  ;igree  there  must  be 
special  damage  to  support  the  action;  but  it  is  plain  that  the 
declaration  sets  it  forth.  The  meaning  of  lord  Coie,  Blackstone^ 
and  other  writers  is,  that  while  a  common  nuisance  exists 
merely  as  a  danger,  there  no  individual  can  have  an  action,  as 
all  are  in  the  same  situation;  but  the  instant  a  man  is  obliged  to 
take  even  a  circuitous  route,  the  damage  is  peculiar  to  himself, 
because  it  is  impossible  that  he  sustains  it  in  common  with  any 
one.  Accordingly  the  action  was  held  good  in  Hart  v.  Bas- 
set, {g)  where  the  plaintiff  declared  that  he  had  tithes  in  a  cer- 
tain parish,  and  a  barn  in  which  he  intended  to  lay  them,  and 
that  the  king's  highway  in  B.  was  the  direct  way  for  carrying 
the  tithes  to  the  barn;  but  that  the  defendant  obstructed  it  with 
a  ditch,  so  that  he  was  forced  to  carry  them  round  about  and  in 

(«)  1  Ld.  Ray.  493.  (c/)  1  D.  &  E.  141.  (/)  1  Snund.  228.  c. 

(Z.)  Doug.  638.  (f^  4  T)  C-  E  470  (^)  4  Vina:  519.  pi.  7. 

(r)  2  SaU.  662: 


OF  PENNSYLVANIA.  467 

li   more  diffciilt  way.  The  same  was  ultimately   decided  in      1808. 

Iveson  V.  Moore,  where  HoWs  opinion  was  reversed  bv  all  the    „ 

'  '  -  JriiiGHES 

judges  of  the  common  pleas,  and  the  barons  of  the  exchequer,         x'. 

12  Mod.  269;  and  it  is  contradicted  by  no  case  but  the  nisi    Hexser 

prius  decision  of  Hubert  v.  Groves.  The  distinction  between 

direct  and  consequential  damages  is  therefore  not  law  at  this 

day.   An  injury  of  any  kind  to  person  or  property  is  a  special 

injury;   and   it   is  only  material   that   the   person   suing  has  a 

damage,  which  is  not  common  to  all  others.  Williams^s-  ca;c.  ((3) 

The  present  however   is  stronger  than  any  of  these.  Thi-  raft 

was  impeded  bv  the  dam,  and  it  was  impossible  for  the  plaintift 

to  take  it  any  other  way.  There  is  a  material  difference  between 

the  obstruction  of  a  road,  and  that  of  a  river.  In  the  one  case 

the  traveller  has  his  choice  of  a  circuitous  route;  in  the  other  the 

raftman  has  no  choice  at  all;  the  property  cannot  pass  to  market, 

and  special  damage  is  inevitable.   So  that  yielding  the  cases  of 

Hart  V.  Basset  and  Jvesori  v.  Moore^  the  plaintiff"  stands  upon  a 

ground  that  is  not  shaken  by  any  case.   His  cause  of  action  is 

also  well  laid.  The  declaration  contains  in  strictness  the  per 

quod;  for  it  sets  forth  that  by  the  dam  he  was  prevented  from 

passing  with  his  rafts;  and  it  previously  avers  that  he  had  come 

to  the  dam,  with  the  intention  of  navigating  the  river.  Here  is 

a  clear  statement  of  special  damage  connected  with  its  cause. 

It  must  also  have  been  pro\'ed  upon  tiie  trial,  or  he  could  not 

have  recovered;  and  therefore   the  verdict  is  evidence  of  it. 

Macmurdo  v.  Smith.  (//)   At  all  events  it  is  necessarily  implied 

by  the  facts  stated  in  the  declaration;  which  brings  it  within  all 

the  cases  cited  for  the  plaintiff  in  error. 

The  opinion  of  the  court  was  delivered  by 

TiLGiiMAN  C.  J.  This  cause  comes  before  the  court  on  a. 
writ  of  error  to  the  common  pleas  of  Berks  county.  It  is  an 
action  on  the  case  for  damages  occasioned  to  Heiser  the  plain- 
tiff below,  who  is  defendant  in  error,  by  the  defendant's  obstruc- 
ting the  navigation  f)f  the  Big  Schui/lki//,  which  was  made  a 
public  highway  l)y  act  of  assembly. 

The  plaintiff  in  error  contends  that  the  declaration  contains 
no  cause  of  action,  l)ecausc  it  shews  no  special  damage  sustain- 
ed by  the  plaintiff  below. 

(rt)  5  Pefi.  71  '/>)  7  D.iSf  E.  52;3-. 


468  CASKS  IN  THE  SUPREME  COURT 

1808.  ^  'i^  general  principle  has  been  always  agreed,  that  for  an 

Hl'ghes   o^>struction  to  a  highway,  which  is  a  common  nuisance,  an  ac- 
1,. ;        tion  cannot  be  suj)ported,  but  by  a  person  who  has  suffered 
Heiser.    some  special  damage.   But  in  the  application  of  this  rule  to  the 
different  cases  which  have  arisen,  there  have  been  decisions 
which  are  not  to  be  reconciled.   In  Hart  v.  Basset  {m  Car.  2.) 
sir  T.  Jones  156,  an  action  was  supported  by  a  ))crson  entitled 
to  receive  tithes,  who  in  consecjuence  of  an  obstruction  in  the 
liighway,  was  forced  to  carry  his  tithes  by  a  circuitous  route. 
The  declaration  alleged  that  he  was  forced  to  carry  them  by  a 
longer  and  more  difficult  rvay^  and  no  other  damage  was  shewn. 
In  Paine  v.  Partrich  (3.  Wm.  and  Mary)  Carth.  194,  the  court 
are  made  to  say,  that  if  by  a  common  nuisance  a  man  is  delayed 
in  his  journey,  by  reason  whereof  he  is  damnified,  and  some 
important  affair  neglected,  an  action  does  not  lie,  because  to 
support  an  action  the  damage  must  be  direct^  and  not  conse- 
quential; as  for  instance,  the  loss  of  his  horse^  or  some  corporal 
hurt.  Such  seems  to  have  been  the  opinion  of  C.  J.  Holt  in 
Iveson  v.  Moor^  (10  Wm.  3.)  Carth.  451,  where  the  plaintiff 
alleged  that  he  had  a  great  quantity  of  coals  (he  being  possess- 
ed of  a  colliery  and  coal  mine)  which  he  was  prevented  from 
carrying  in  his  carls  and  carriages,  by  reason  of  an  obstruction 
in  the  highway  raised  by  the  defendant.  One  of  the  other  jus- 
tices of  the  king's  bench  agreed  with  Holt;  but  the  two  others 
were  against  him.  In  consequence  of  this  diff-rrence  of  opinion, 
the  case  was  laid  before  all  the  judges  on  a  consultation  in  the 
exchequer  chamber,  and  they  were  of  opinion  the  action  lay. 
IVilles  Rep.  74:  note  a.  In  Chichester  v.  Lethbridge  (11  Geo.  2.) 
Willcs.  71.  the  plaintiff  averred  that  at  divers  times  between 
two  certain  days,  he  was  travelling  in  his  coach  in  a  certain 
highway,  but  the  defendant  obstructed  the  said  way  by  bars, 
posts,  trenches,  &c.  and  in  his  proper  person  withstood  the 
plaintiff  from  removing  and  abating  the  obstruction,  so  that 
the  plaintiff  then  and  hitherto  could  not  and  cannot  Iwoe  or  use 
the  said  xoay  as  he  oitght^  to  his  damage  forty  pounds.  The 
court  were  of  opinion,  that  particular  damages  were  assigned 
sufficient  to  support  the  action,  and  cited  Hart  v.  Basset  in 
support  of  their  opinion.  They  said,  this  case  was  stronger 
than  Hart  v.  Basset  in  two  particulars,  one  of  which  was  "  that 
"  it  was  expressly  laid  that  the  plaintiff  was  attempting  to  tra- 
■•'  vel  the  road,  but  could  not  by  reason  of  the  obstructions." 


or  PENNSYLVANIA.  409- 

This  case  of  Chichester  v.  Lethbridge  appears  to  be  the  last  ad-      1808. 
judged  in  England  on  the  subject,  prior  to  our  revolution.  Since  "Tj  ,  ^ 

the  revolution,  the  case  ol  Hubert  v.  Graven  (shortly  reported  ^^ 
in  1  Esp.  148.)  has  been  adjudged  in  express  contradiction  to  Heiser. 
Hart  V.  Basset,  This  case  ot  Hubert  v.  Groves^  is  no  authority 
here,  and  no  I'urlher  to  be  regarded  tlian  its  intrinsic  merit 
demands.  There  is  no  occasion,  however,  to  decide  to  which 
of  these  cases  the  court  inclines,  because  they  think  the  case 
before  them  stronger  than  either.  The  phiintiflhas  averred  that 
he  had  procured  a  large  quantity  of  boards  and  timber,  and 
made  them  into  rafts  to  bring  down  the  river;  that  he  seized 
the  opportunity  of  a  flood,  and  did  come  down  as  far  as  the 
obstruction,  and  v/as  there  stopped  by  tlie  obstruction.  It  is 
certain  that  he  must  have  suffered  special  damage,  and  the  jury 
have  found  so;  and  if  he  has,  it  is  immaterial  whether  it  was 
immediate  or  consequential. 

The  court  are  of  opinion,  therefore,  that  the  judgment  in  the 
court  below  was  rightly  given  for  the  plaintiff,  and  must  be  af- 
firmed. 

Judgment  aflirmed. 


Itj^  He  I  N  H  O  L  J)  T  ai(amst  Al  B  £  R  T  I.  Saturday. 

*i  o  December 

31st 

T  EV1\  upon  a  former  day,  obtained  a  rule  upon  the  plaintiff  i'l^^  authori. 

to  shew  cause  \\\\y  a  discontinuance  should  not  be  entered  f^,|j^j^'s\^t^ 

in  this  suit;  and  now,  upon  the  return  of  the  rule,  it  appeared '^'""'^y  's 

that  the  action  uas  l)rought  to  March  term  1803,  and  that  on].""/^reanuc' 

the  14th  March  1804,  by  order  of  the  defendant's  attorney,  a'^'""^''^';''""'^ 

I     r  r  111      pros-  with- 

non  pros,   was  entered  ior  want  oi  a  narr^  agreeably  to  the;,,,^  the  con. 
r\\\c  oi  ZA  September  \\i(d2.   Afterwards,  on  the   1st  yr//«/«rj/ '*^."<^  of  l""^ 
1806,  the  same  attorney  b)'  writing  agreed  that  the  nonpros. 
should  be   taken  off.   A  declaration  was  filed  on  the  same  dav, 
and  the  cause  thus  reinstated  upon  the  docket. 

The  defendant's  affidavit  was  then  produced,  stating  that  he 
had  been  j)resent  when  the  nonpros,  was  demanded,  and  that 
shortly  afterwards  his  attorney  told  him  it  was  entered,  and 
the  suit  was  at  an  end;  that  he  had  never  been  consulted  as  to 
the  revival  of  it;  and  that  if  he  had  been,  he  sliould  have  refused 
his  consent. 

Vol.  I.  3  O 


T'. 

Albeiiti. 


470  CASES  IN  THE  SUPUl'.ME  COURT 

1808.  ll^pon  these  facts,  Levy  argued,  tliat  the  noiiprofi.  was  taken 

R^.iN^  off  without  any  authority.  He  contended  that  I)y  the  judgment 
iioLDT  o{  non  pros,  the  warrant  of  the  defendant's  attorney  was  at  an 
end;  and  that  it  was  not  competent  to  him  to  renew  the  suit 
without  a  fresh  retainer,  which  he  never  had.  He  cited  the 
SttU.  r,f]Ve.slm.  2.  c  10.  2  In.st.  377.  to  shew  that  the  power  of 
the  attorney  terminates  when  the  plea  is  determined;  and  Gitb, 
Exec.  92.  and  Runn.  on  Ejec.  428.,  which  are  clear  to  the  point, 
that  bv  judgment  against  the  defendant,  the  warrant  of  the 
plaintiff's  attorney  determines,  except  so  far  as  to  suing  out 
execution  within  the  year. 

Barjies^  who  was  to  have  shewn  cause,  was  stopped  by  the 
court. 

Per  Curiam.  We  have  no  doubt.  If  the  attornev  has  done 
wrong,  he  is  answerable  for  it.  But  undoubtedly  by  the  prac- 
tice of  Pennsijlvania^  the  authority  of  the  defendant's  attorney 
is  competent  to  restore  an  action  after  nonpros.  The  authority 
of  an  attorney  is  not  limited  here  in  the  same  manner  that  it  is      it 
in  England.  For  a  payment  to  the  plaintiff's  attorney,  long  after     2b , 
judgment,  and  without  execution,  has  been  held  good  upon  ar-     2b  j 
gument.  Let  the  rule  be  discharged.  ob  .j 

Rule  discharged,   '^b  << 

9s  ,27; 

Lessee  of  W  a  t  s  o  n  and  Wife  as^uinst  Bailey  and    '.1= '  y^ 

Saturday,  ,  ^  .^"^*b«i 

December  Othcrs.  ^^"'^1 

:Ust.  82     285 

Bargain  and      *     PPE  AL  from  the  circuit  court  of  Lancaster  county. 
Mife's  land     -^^      '^^^^  w'lic  of  IVatson^  one  of  the  lessors  of  the  plaintiff, 
li}  husband  claimed  the  premises  in  this  ejectment,  as  heir  at  law  of  Mar- 
mIk)  bva     garet  Mercer^  in  whom  the  title  was  formerly  vested.  The  de- 


_96    429 


Mercer^  in  virtue  of 
xecuted  by  her  and 


cnnificateof  fendants  also  derived  title  from  Margaret  3i 

a  jildprc-  of  ,         ,       ri  •  1        1         r    1 

the  common  ^  deed  of  bargam  and  sale  of  the  premises,  ex 

pleas,  indor-  her  husband  James  Mercer^  to  Nathan  Thompson^  on  the  30th 

sed  on  tlic 

rlecd,  *'  por- 

"  sonally  I'ppeared  before  liim,  and  aciiw-ivledged  the  indenture  to  be  their  act  and  deed,  and 

"  ilesircd  the  same  to  ho  recorded,  she'6eing  'if  full  age,  ami  hy  hitn  examined  apart,"  not 

sufficient  to  pass  the  wife's  estate. 

Parol  declarations  of  the  wife  that  she  executed  the  deed  voluntarily,  and  if  it  was  not 
sufficient,  would  execute  and  acknowledge  it  again,  or  do  any  other  act  to  make  the  deed 
good, — inadmissible. 


GF  PENNSYLVANIA.  471 

3/aj/  1785,  who  on  the  same  day  conveyed  to  the  husband,  of     180S. 
whom  the  defendants  were  heirs.  On  the  dav  the  deed  was  ex- 


Lessee 
ecuted,  the  husband  and  wife  appeared  before  a  judge  of  the         ^f 

common  pleas,  who  indorsed  upon  the  deed  the  following  cer-  Watson 

tificate:  "  Lancaster  county  ss.  Personally  appeared  before  me,  ^'" 

"the  subscriber,  one  of  the  justices  of  the  court  of  common 

"  pleas  for  the  countv  aforesaid,  the  widiln  named  yames  JSler- 

*'*' cer  and   Marsfarct  his  wile,  and  acknowledged  the   above 

"  written  indenture  to  be  their  act  and  deed,  and  desired  that 

"  the  same  might  be  recorded.  Slie  the  said  Margaret  being  of 

'"''full  age,  and  by  me  examined  apart.  In  testimony  whereof  I 

"  have  hereunto"  set  my  hand  and  seal,  this  30th  day  of  May^ 

"  anno  Domini  1785." 

The  chief  justice,  before  whom  the  cause  was  tried  in  May 
1807,  held  that  the  acknowledgment  was  defective,  and  that 
therefore  the  deed  did  not  pass  the  estate  of  the  wife.  The  de- 
fendants then  offered  to  produce  evidence  of  parol  declarations 
by  the  wife,  that  she  executed  the  deed  voluntarily,  and  that  if 
it  was  not  sufficient  she  would  execute  and  acknowledge  it  over 
again,  or  do  any  other  act  to  make  the  deed  good.  The  evi- 
dence was  iield  to  be  inadmissible;  and  the  jury  found  for  the 
plaintilF.  A  motion  was  then  made  for  a  new  trial,  which  was 
refused;  and  the  defendants  appealed  to  this  court. 

The  act  of  assembly,  upon  which  the  main  question  turned, 
was  passed  the  24th  February  1770,  and  is  entitled  "  an  Act  for 
"  the  better  confirmation  of  the  estates  of  persons  holding  or 
"  claiming  under  feme  coverts,  and  tir  establishing  u  mode  by 
"  which  husband  and  wife  may  hereafter  convey  their  estates." 
The  preamble  to  the  1st  sect,  recites,  that  it  had  been  thereto- 
fore the  usage,  ever  since  the  settlement  of  the  province,  in 
transferring  the  estates  of  femes  covert,  in  many  cases  lor  tlie 
husl)and  and  wife  to  execute  the  conveyance  in  the  presence  of 
witnesses  only,  and  in  other  cases,  after  such  execution  to  ac- 
knowledge the  same  before  a  justice  of  the  peace,  or  ajudgeof 
the  common  pleas  or  supreme  court,  the  wife  being  scparat* 
and  aj)art  from  her  husband  examined;  whereby  a  great  num- 
ber oi  bona  fide  jjurchasers,  for  a  valuable  consideration,  under 
such  conveyances,  were  then  become  the  just  and  equitable 
owners  and  possessors  of  such  estates;  and  as  doubts  had  arisen 
whether  such  deeds  were  valid  in  law  to  pass  the  estate  of  the 
wife  in  the  lands  inteudtxi  to  be  transferred  by  the  said  deeds, 


Bailey. 


472  CASES  IN  THE  SUPREME  COURT 

1808.      it  therefore  enacts  that  no  conveyance  whatsoever  theretofore 

J  bo7ia  fide  made  by  husband  and  wife  in  manner  aforesaid,  of 

I^essce  1  ■ 

of         any  lands,  tenements,  or  hereditaments  whatsoever,  should  be 

Watson    deemed  defective;  but  that  the  same  should  be  valid  in  law  for 
transferring  and  passing  the  estates,  rights,  titles,  and  interests 
of  such  husband  and  wife,  according  to  the  true  intent  and 
meaning  of  the  words  thereof.     The  2d  section  is  as  follows: 
"  And  in  order  to  establish  a  mode  by  which  husband  and  wife 
may  hereafter  convey  the  estate  of  theivtfe^  be  it  enacted,  tiiat 
where  any  husband  and  wife  shall  hereafter  incline  to  dispose 
of  and  convey  the  estate  of  the  wife,  or  her  right  of  in^  or  tOy 
any  lands,  &c.  it  shall  and  may  be  lawful  to  and  for  the  said 
husband  and  wife,  to  make,  seal,  Stc.  any  grant,  bargain  and 
sale,  &c.  for  the  lands,  &c.  intended  to  be  by  them  passed  and 
conveyed;   and  after  such  execution,  to  appear  before  one  of 
the  judges  of  the  supreme  court,  or  before  any  justice  of  the 
county  court  of  common  pleas,  of  and  for  the  county  where 
such  lands,  &c.  lie,  and  to  acknowledge  the  said  deed  or  con- 
veyance; which  judge  or  justice  shall,  and  he  is  hereby  autho- 
rized and  required  to,  take  such  acknowledgment;  in  doing 
whereof,  he  shall  examine  the  wife  sej^arate  and  apart  from  her 
husband^  and  shall  read  or  otherwise  make  known  the  full  con- 
tents of  such  deed  or  conveyance  to  the  saidxvife;  and  if  upon 
such  separate  examination^  she  shall  declare  that  she  did  volun- 
tarily^ and  of  her  own  free  will  and  accord^  seal^  and  as  her  act 
and  deed  deliver^  the  said  deed  or  conveyance^  without  any  coer- 
cion or  compidsion  of  her -^aid  husband^  every  such  deed  or  con- 
veyance shall  be,  and  the  sam<;  is  hereby  declared  to  be,  good 
and  valid  in  law,  to  all  intents  and  purposes,  as  if  the  said  wife 
had  been  sole,  and  not  covert,  at  the  time  of  such  sealing  and 
delivery;  any  law,  usage,  and  custom,  to  the  contrary  in  anv 
wise  notwiihsianding."  1  St.  Laivs.  536. 

MoJitgomery  and  Tilghman  for  the  appellants.  The  act  of  1 770 
makes  no  distinction  between  deeds  to  pass  the  wife's  contingent 
right  of  dower,  and  deeds  to  pass  her  separate  estate;  it  includes 
both.  The  present  question  is  therefore  of  vast  importance;  be- 
cause,however  in  some  instances  the  ceremoniesof  thislawhave 
been  complied  with  in  deeds  to  pass  her  estate,  it  is  notorious  that 
the  present  form  of  certificate  is  almost  universally  indorsed 
upon  deeds  to  bar  her  dower.  This  fact  is  material  to  shew  the 


OF  PENNSYLVANIA.  473 

true  meaning  of  the  act  of  1770.  The  preamble  recites  an  ex-  1808. 
isting  usage  for  femes  covert  to  pass  their  estates  by  a  simple  Lggg^g 
bargain  and  sale  before  witnesses;  and  another  usage  to  pass  of 
them  by  deed  and  acknowledgment,  the  wife  upon  such  ac-  Watson 
knowledgment  being  examined  apart  from  her  husband,  without  ^'' 
more.  The  former  usage  had  been  sanctioned  by  a  judicial  de- 
cision in  Lloyd's  Lessee  v.  Taylor^  (a)  and  the  latter  in  Davy  v. 
Tur?ier.  (b)  In  the  one  there  was  no  acknowledgment  or  sepa- 
rate examination;  in  the  other  there  was  an  examination  apart, 
-^vhich  included  a  communication  of  the  contents  to  the  wife.  The 
1st  section  of  this  act  sanctions  all  deeds  in  conformity  to  either 
usage;  and  by  the  second  section  it  confirms  and  establishes 
that  usage  under  which  married  women  passed  their  estate  or 
right  in  land  by  deed,  with  an  acknowledgment  and  examina- 
tion apart.  By  confirming  this  usage,  and  making  it  written 
law  as  to  all  subsequent  conveyances,  it  adopted  and  legalized 
that  form  of  certificate  which  had  been  before  used  by  the  ma- 
gistrate in  similar  cases;  and  accordingly,  to  this  day,  the  lorm 
has  undergone  litde  or  no  change ;  and  very  many  titles  are  now 
derived  from  femes  covert  under  no  other  evidence  than  the 
defendants  have  shewn.  This  practice  since  the  law,  universal 
as  to  conveyances  by  which  the  wife  has  passed  her  dower,  and 
very  general  as  to  those  by  which  she  has  passed  her  fee,  is 
irresistible  evidence  of  a  known  intention  in  the  legislature  to 
make  no  change  in  the  mode  of  pursuing  the  usage  they  con- 
firmed. This  is  one  view  of  the  subject.  But  take  it  as  a  mode 
of  conveyance  devised  by  the  act.  What  does  the  act  direct? 
That  the  justice  shall  do  certain  things;  but  not  that  he  shall 
recite  all  he  does.  He  has  said  enough  to  shew  that  the  sub- 
stance of  the  act  has  been  satisfied.  The  acknowledgment 
by  the  wife,  that  the  indenture  was  her  act  and  deed,  and 
her  examination  apart  from  her  husband,  which  is  coupled 
with  this  acknowledgment,  shewing  the  one  to  have  been 
made  during  the  other,  arc  well  set  out.  The  only  thing 
wanting  is,  that  he  made  known  to  her  the  contents;  and  this  is 
to  be  presumed.  In  the  first  place,  this  was  necessary  by  the 
usage  before  the  act;  and  yet  in  Davy  v.  Turner^  where  it  was 
not  set  out  by  the  indorstment,  the  usage  was  held  to  have 
h«'cn  pursued.   In  the  next  place  it  is  a  principle,  that  when 

(rt)  1  Dall  \7  (l>)  1  Dall.n. 


474  CASES  IN  THE  SUPREME  COURT 

1808.  the  law  trusts  to  a  judicial  officer  the  power  to  do  a  certain 

Lggg^jg  particular,  and  he  certifies  he  has  done  it,  every  thing  forming 

of  that  jiarticular  is  presumed  to  have  been  done.  Illustrations  of 

Watson  this  principle  are  found  in  19  Vincr  187.  pL  1.  39  i,'.  3.  7.  Bro. 

^'*         Action  on  the  ease  pU  67.   Now  he  has  certified  the  separate 
Bailey.  .      .  i  •  i         ,    i       , 

examuiation,  which  mcludes  the  makmg  known  the  contents, 

and  her  declaration  that  she  acts  without  coercion.  These  are 
parts  of  one  ceremony;  and  the  whole  being  certified,  the 
question  is  simply  whether  the  parts  are  included.  Credit  is  to 
be  given  to  justices  of  the  peace,  that  they  have  done  right  in 
the  execution  of  their  power.  The  presumption  is  in  their  fa- 
vour. The  Slueen  v.  Simpson,  (a)  Here  there  is  enough  to 
shew  that  the  judge  had  the  act  in  his  eye;  and  if  it  cannot  be 
presumed  that  he  did  his  duty,  nothing  short  of  a  full  state- 
ment of  particulars  will  answer;  and  then  not  one  title  in  fifty- 
can  stand.  At  all  events  if  the  court  is  to  presume  that  he  did 
not  do  his  duty,  the  declarations  of  the  wife  should  have  been 
received  to  rebut  the  presumption. 

Hopkins  for  the  appellee.  Whatever  in  common  cases  may 
be  the  presumption  in  favour  of  justices,  none  is  ever  made  to 
give  validity  to  the  deed  of  a  married  woman;  for  the  general 
presumption  being  that  such  a  deed  is  void,  it  is  essential  that 
those  things  which  constitute  its  validity,  should  plainly  appear 
along  with  it.  Hence  when  she  joins  in  a  fine,  and  undergoes  a 
separate  examination  by  writ,  the  examination  is  not  presumed 
to  have  been  correct,  from  any  short  minute  of  the  judge;  but 
it  must  itself  always  appear  upon  the  writ,  and  be  its  own  evi- 
dence. 2  Inst.  515.  The  usage  before  the  act  of  1770  took  the 
place  of  a  fine  to  save  expense;  but  from  the  looseness  of  the 
usage,  doubts  were  entertained  whether  the  conveyances  under 
it  were  valid.  The  legislature  supposed  them  to  have  passed 
at  most  but  an  equitable  title;  and  they  were  confirmed  only  in 
favour  of  purchasers  for  a  valuable  considei-ation.  Taking  this 
case  then  upon  the  foot  of  usage,  the  defendant's  title  is  defec- 
tive. They  are  not  purchasers  for  a  valuable  consideration;  but 
the  deed  of  the  husband  and  wife  was  a  mere  instrument  to  fix 
the  fee  in  the  husband.  The  dispute  is  between  the  hceres  natus 
and  the  ha'res  f actus;  and  equity  will  never  aid  a  defective  con- 

(a)  10  Mod.  382. 


OF  PENNSYLVANIA.  475 

veyance  to  transfer  an  estate  from  the  former  to  the  latter.  The      1808. 

act  however,  instead  of  estabhshing  the  usage  even  for  the  past     j 

time,  merelv  confirms  certain  deeds  under  it,  and  bv  the  second         q( 

section  abolishes  it  for  ever,  by  directing  a  new  and  explicit  Watson 

rule  for  the  future.  The  preamble  is  verv  plain;  it  is  to  establish         ^• 

.         '  Bailey. 

a  mode  by  which  husband  and  wife  may  hereafter  convey  the 

estate  of  the  xvife.  Deeds  to  bar  dower  are  therefore  not  in- 
cluded j  and  they  may  be  safe  under  the  old  form  of  acknow- 
ledgment. The  ceremony  on  the  wife's  part  is  the  same  that  is 
required  in  a  fine;  and  it  should  therefore  be  as  explicitly  en- 
tered on  the  deed.  That  a  certificate  of  its  performance  is  ne- 
cessary, has  not  been  denied;  the  only  question  then  is,  what 
does  the  present  certificate  contain.  The  joint  acknowledgment 
is  nothing;  for  the  wife's  is  to  be  separate  and  apart  from  the 
husband.  There  is  therefore  no  acknowledgment  by  the  wife. 
The  contents  are  to  be  made  known  to  her;  this  does  not 
appear.  She  is  to  declare  that  her  acknowledgment  is  not  the 
effect  of  coercion  or  compulsion;  this  does  not  appear;  and 
these  are  of  the  very  essence  of  the  acknowledgment.  It  is  not 
even  certified  that  she  was  examined  separate  and  apartyr;?;;? 
her  husband.  The  act  did  not  intend  that  the  court  should  sup- 
ply a  defective  certificate  by  conjecture  and  inference.  Abuse's 
of  the  husband's  power,  and  collusion  with  the  magistrate, 
Were  both  to  be  guarded  against;  and  it  is  obvious  that  such 
a  certificate  as  this  may  be  true  in  every  part,  and  yet  the  act 
entirely  defeated.  If  the  contents  are  presumed  to  have  been 
made  known,  and  the  requisite  declarations  to  have  come 
from  the  wife,  it  is  idle  to  make  a  record  of  any  part  of  the 
proceeding;  a  mere  certificate,  that  the  parties  had  been  before 
the  justice,  would  be  sufficient  ground  for  presumption.  As  to 
coupling  the  acknowledgment  with  the  sej)arate  exaniinalion, 
it  is  impossible,  because  the  acknowledgment  is  joint;  and  this 
furnishes  another  answer  to  the  doctrine  of  presumption, 
namely,  that  where  a  magistrate  sets  out  a  proceeding  mani- 
festly defective,  the  law  is  not  at  liberty  to  presume  that  he  has 
done  right  in  the  execution  of  his  power;  he  may  have  had  the 
law  in  his  eye;  but  he  has  either  misunderstood  or  disregarded 
it.  A  usage,  since  the  act,  to  convey  all  the  estates  of  married 
women  in  Pennsylvania,  by  such  a  deed  and  acknowledgment, 
would  not  weigh  a  straw  against  the  act  of  assemlily.  vVs  to  the 
declarations,  if  the  certificate  is  bad,  it  is  as  none;  and  then  (he 


476  CASES  IN  THE  SUPREME  COURT 

1808.      declarations  can  never  amount  to  an  acknowledgment.    What 

;  "the  wife  savs  upon  the  subject  must  be  said  before  the  proper 

QJ-        officer  apart  from  her  husband,  and  be  so  certified.  The  law 

Watson    respects  her  interest  too  much  to  allow  any  weight  to  declara- 

^'"         tions  elsewhere. 
Uailet. 

Rcplij.  It  is  too  strong  to  say  that  an  universal  usage  for 
such  an  acknowledgment  would  not  weigh  a  straw.  If  a  usage 
could  repeal  the  common  law,  how  much  more  should  it  avail, 
when  it  affects  the  mere  construction  of  a  law.  Lord  Coke 
says  usage  has  prevailed  even  against  magna  charta.  2  Inst. 28. 
We  do  not  ask  for  aid  to  a  defective  conveyance;  though  if  we 
did,  the  objection  would  have  no  weight;  for  the  enacting  clause 
of  the  first  section  goes  further  than  the  preamble,  and  confirms 
the  estates  of  purchasers  and  all  others;  and  in  Davy  v.  Turner 
the  husband  himself  was  the  defendant,  and  in  Lloyd^s  Les- 
see v.  Taylor  a  purchaser  under  a  judgment  against  the  hus- 
band. The  whole  is  a  question  of  law,  whether,  as  the  act  does 
not  require  the  justice  to  set  forth  the  particulars,  he  is  bound 
to  do  it.  The  enacting  clause  of  the  second  section  also  goes 
further  than  the  preamble;  it  establishes  a  mode  of  conveying 
the  wife's  right  of^  in^  or  to^  any  lands,  which  includes  dower; 
andtherefore  our  objection  is  not  answered.  Examined  apart  is  a 
technical  phrase,  to  which  time  has  appiopriated  a  comprehen- 
sive meaning  of  all  that  the  act  requires;  it  is  apart  from  every 
body,  and  therefore  apart  from  the  husband.  As  to  collu- 
sion with  the  magistrate,  it  is  more  likely  to  end  in  a  formal 
certificate  than  otherwise;  it  is  certainly  not  prevented  by  one 
more  than  the  other.  Ut  res  magis  valeat  quam  pereat^thc  deed 
should  be  confirmed,  unless  the  law  is  imperative. 

Yeates  J.  This  is  an  appeal  from  the  decision  of  the  cir- 
cuit court  of  Lancaster  county,  overruling  a  motion  for  a  new 

mal. 

The  facts  of  the  case  are  shortly  these.  .SaroA,  one  of  the  lessors 
of  the  plaintiff,  claimed  as  the  sister  and  heir  at  law  oi  Marga- 
ret Mercer^  who  died  without  having  had  issue  by  her  husband 
James  Mercer.  Mrs.  Mercer  was  seised  of  the  lands  in  her 
own  right.  On  the  30th  May  1785,  James  Mercer  and  Mar- 
garet his  wife  executed  a  conveyance  of  the  premises  to  Nathan 
Thompson  in  fee  simple,  in  consideration  of  eight  hundred 


OF  PENNSYLVANIA.  47^ 

pounds,  and  on  the  same  day  as  is  indorsed  on  the  deed  they      igOS. 
appeared  before  Henrij  Slmjmaker^  one    of  the  justices  of  the     Lessee"" 
court  of  common  pleas  for  Lancaster  count)',  and  "  acknow-         of 
"  ledged  the  within  written  indenture  to  be  their  act  and  deed,  Watson 
"  and  desired  that  as  such  the  same  might  be  recorded;  she  the    „    '"' 
"  said  Margaret  being  of  full  age  and  by  the  said  justice  ex- 
"  amined  apart.  This  the  justice  certified  under  his  hand  and 
"  seal." 

If  this  conveyance  devested  the  said  Margaret  Mercer  of  hef 
legal  title  to  the  lands,  the  plaintiff  was  not  entitled  to  recover 
them,  and  the  defendants  would  be  entitled  to  a  new  trial.  The 
validity  of  the  conveyance,  it  is  agreed,  depends  upon  the  true 
construction  of  the  act  of  assembly,  passed  on  the  24th  Fehntarij 
1770,  entitled  "•  an  act  for  the  better  confirmation  of  the  estates 
"  of  persons  holding  or  claiming  under  femes  covert,  and  for 
"  establishing  a  mode  by  which  husband  and  wife  may  hereaf- 
"  ter  convey  their  estates."  1  St.  Lazus  535. 

The  preamble  of  the  act  recites  that "  it  had  been  theretofore 
"  the  custom  and  usage  ever  since  the  settlement  of  this  jjro- 
"  vince  in  transferring  the  estates  of  femes  covert,  in  many 
"  cases,  for  the  husband  and  wife  to  execute  the  deed  or  con- 
"  veyance  in  the  presence  of  witnesses  only;  and  in  other  cases, 
"  after  such  execution  to  acknowledge  the  same,  the  said  wife 
*'  being  separate  and  apart  from  her  husband  examined;  by 
"  means  whereof  a  verv  great  number  of  bona  fide  purchasers 
"  for  a  valuable  consideration  had  become  the  just  and  ecjuita- 
"  ble  owners  and  possessors  of  such  estates."  It  then  goes  on  to 
provide  that  such  grants,  deeds,  &c.  thereto/ore  bona  fide  made 
and  executed  by  husband  and  wife  in  manner  aforesaid,  shall 
be  good  and  valid  in  law. 

There  can  be  no  doubt  that  the  decisions  in  this  court,  in  thir 
Lesser  of  Davij  and  wife  \.  Turuer  in  September  term  1764» 
where  there  was  an  acknowledgment  by  baron  and  feme,  and 
which  was  carried  by  appeal  to  the  king  in  council,  (1  Da//.  11.) 
and  in  L/otjd's  Lessee  v.  Taij/or^  in  AprU  1 7()8,  where  there 
was  no  acknowledgment  (I  Da//.  17.),  gave  l)irth  to  this  law. 
These  decisions  were  founded  on  a  principle  highly  conduciw 
to  the  peace  of  society,  that  comnmnis  error  facH  jus. 

The  law,  having  in  the  first  section  put  such  bona  fide  pur- 
chasers in  a  state  of  perfect  security,  proceeds  to  establish  a 
rule  for  future  cases.  It  declares  that  "  where  any  husband  and 

Vol..  I.  3  p 


478  CASKS  IN  Tin:  SUPRKMi:  COUR'i' 

1808.      ''  Wiic  shall  thcrcaj'tfr  incline  to  dispose  of  and  convey  tlic  eS'- 

1  "  tate  of  the  wife  or  her  right  of"  in  or  to  any  lands,  tenements 

of         "  or  hereditaments  whatsoever,"  it  shall  and  may  be  lawful  for 

Watson   the  husband  and  wife  to  execute  any  grant  &C.,  and  to  acknow- 

,.    ^  ■         ledge  the  same  in  the  mode  pointed  out  by  the  act,  which  is 

thereby  declared  to  be  good  and  valid  in  law  to  all  intents  and 

purposes,  as  if  the  said  wife  had  been  sole  and  not  covert. 

It  has  been  contended  that  the  acknowledgment,  herein 
directed,  extends  to  such  deeds  wherein  the  wife  joins  the  hus- 
band to  bar  her  of  doAver,  equally  with  those  which  she  before 
held  in  her  own  right;  and  that  a  practice,  founded  on  the  for- 
mer loose  mode  of  taking  acknowledgments,  has  been  conti- 
nued; which  it  would  be  highly  mischievous  and  inconvenient 
now  to  impeach;  and  that  common  usage  has  expounded  the 
act. 

If  the  first  remark  rested  on  solid  grounds,  I  should  long- 
pause,  before  I  adopted  a  construction  which  eventually  might 
unsettle  many  estates.    The  maxim  of  "  commimis  error  facit 
'"'■  jus'^  has  great  weight  with  me,  where  the  most  injurious  con- 
sequences would  flow  from  counteracting  it.   I  admit  that  the 
words  standing  by  themselves  might,  from  their  generality,  be 
supposed  to  comprehend  cases  wherein  the  wife  releases  her 
contingent  interest  of  dower;  but  the  whole  section  must  be 
read  together,  in  order  to  collect  the  true  meaning  of  the  legis- 
lature. Thev  distinctly  express  their  intention,  and  the  object  of 
their  provision,  in  the  beginning  of  the  sentence  thus:  "  And  in 
"  order  to  establish  a  mode  by  which  husband  and  wife  may 
"  hereafter  convey  the  estate  of  the  ivife^  be  it  enacted  &c."  The 
words  therefore  "  such  deedl^''  which  are  twice  mentioned  in  the 
subsequent   part    of    the   section,   evidently  refer   to  deeds, 
whereby  the  estate  of  the  wife  is  conveyed,  and  no  other.  This 
law  had  two  distinct  objects  in  view:  the  quieting  and  securing 
the  titles  of  purchasers  of  the  lands  of  married  women,  under 
the  ancient  usage,  and  prescribing  a  new  method  of  conveying 
them,  instead  of  the  tedious  and  expensive  ceremony  of  fines  at 
x;ommon  law;  and  both  the  title  and  preamble  of  the  act  strongly 
negative  the  construction  set  up  by  the  defendants'  counsel.  I 
cannot  therefore  bring  mvself  to  believe,  that  the  law  under 
consideration  had  any  effect  on  the  acknowledgments  pointed 
out  by  the  act  of  1715.   1  .SY.  Laxvs  109.  "  No  doubts   had 
"  arisen  whether  deeds  so  acknowledged  were  not  sufficiently 


OF  PENNSYLVANIA.  479 

'*  valid  in  law  to  transfei-  and  pass  the  possible  interest  of.  the      1808. 
"  wife,"  in  case  she  survived  her  husband,  to  lands  held  by  him     Lessee 
during  the  intermarriage.   The  act  of  18th  March  1775,  1  St.         of 
Lcnus  703.  entitled  "  a  supplement  to  the  act  entitled  an  act    ^^  atson. 
"  for  acknowledging  and  recording  of  deeds,"  also  points  out    n .  tley. 
acknowledgments,  without  prescribing  their  form.   I  presume 
it  will  not  be  contended,  that  the  words  of  the  act  of  1770,  as 
to  acknowledgments,  are  adopted  by  this  latter  act.  Thinking 
then,  as  I  do,  that  this  law  of  24th  February  1770  is  suscept- 
ible of  no  other  construction  than  that  which  I  have  mentioned, 
if  I  am  correct  therein,  the  mischievous  consequences,  which 
it  is  apprehended  may  flow  from  the  usual  mode  of  taking  ac- 
knowledgments, cannot  arise.   It  is  by  no  means  a  very  gene- 
)al  practice  for  married  women  to  transfer  the  lands  which 
they  hold  in  their  own  right;  and  the  acknowledgments  of  such 
convevanccs  have  in  general  been  correct. 

I  do  not  take  a  literal  strict  adherence  to  the  very  words  of 
the  act,  to  be  essentially  necessary  in  these  cases;  but  the  sub- 
stantial requisites,  by  which  the  rights  of  married  women  were 
intended  to  be  guarded  by  the  legislature,  should  be  pursued, 
l^ord  Hardxvickc  has  somewhere  said,  that  the  wife  may  be  in- 
timidated l>y  cruelty  on  the  part  of  the  husband,  as  well  as  se- 
duced by  his  flattery  and  extreme  kindness,  to  do  acts,  which, 
on  more  mature  deliberation,  she  would  totally  disapprove  of. 
In  this  acknowledgment,  her  consent  to  the  deed  is  not  express- 
ed by  the  justice,  which  alone  could  give  it  ^'alidity,  without 
adverting  to  smaller  matters.  We  may  regret  that  the  unskil- 
fulness  or  negligence  of  the  scrivener  has  led  to  this  error;  but 
we  are  bound  to  say,  ita  lex  scr'ipla  est;  and  the  party  must 
abide  by  the  consequences  of  his  own  acts. 

It  has  been  contended  that  we  should  give  credit  to  a  certi- 
ficate of  a  judge  of  the  common  pleas,  in  the  execution  ol  his 
powers;  and  he  having  certified  here  that  lie  had  taken  the 
acknowledgmint,  omnia  pra-.suimtntur  esse  rite  aria:  and  that 
parol  testimony  was  oflered  to  tlie  circuit  court  ol  ihe  declara- 
tions of  jMrs.  Mercer^  at  other  limes,  of  her  ])erfect  freedom  of 
will  in  executing  tlie  conveyance;  and  that  she  would  join  in 
any  other  act  in  confirmation  of  her  deed.  This,  it  is  said, 
comes  in  aid  of  the  legal  presumption,  and  removes  every  pre- 
sumption to  the  contrary .  To  this  I  answer,  she  should  have 
appeared  before  a  projier  tribunal,  aijfl   declared  her  consent 


480  CASES  IN  THE  SUPHEME  COURT 

1808.  separate  and  apart  from  her  husband,  in  the  manner  pointed  out 

£^^,^^^.^.  by  the  laws  of  the  country.  Such  parol  testimonj'  ought  not  to 

of  be  received.   It  leads  to  great  uncertainty  and  mischiefs  in  tra- 

Watson  (>jr,g  tides  to  real  estates  at  a  distant  day.   Our  law  is  a  system 

T,    ^  ■  of  nolicv.  It  is  adapted  to  our  local  situation  and  the  common 

uAILEV*  '  -  II-  •      1 

safety.  In  England^  the  rights  of  a  married  Avoman  to  lands, 
can  only  be  passed  by  the  medium  of  a  fine.  Her  examination 
must  ever  appear  on  the  writ;  and  if  the  judge  doubts  of  her 
age,  he  may  examine  her  upon  oath.  2  Inst.  515.  These  regu- 
lations guard  the  interests  of  the  wife,  as  far  as  human  prudence 
can  effect  that  object.  The  act  of  1715  directs  that  the  justice 
shall  certify  the  ackno7vledgment  or  proof  on  the  back  of  the 
deed,  under  his  hand  and  seal,  together  with  tlic  day  and  year 
%vhen  the  same  was  made.  The  act  of  24lh  February  1770  ev- 
idently points  to  the  same  mode  of  certificate;  and  an  important 
trustis  confided  to  the  judge  or  justice  before  whom  the  acknow- 
ledgment is  made.  The  justice  of  the  court  of  common  pleas  has 
not  conformed  himself  to  the  directions  of  the  law  "  establish- 
"  ing  a  mode  by  which  husband  and  wife  may  convey  the  es- 
"  tate  of  the  wife,"  but  has  materially  and  substantially  failed 
therein.  The  provision  was  introduced  as  a  substitute  for  a 
fine,  which  if  not  pursued,  the  deed  was  not  validated  by  the 
act. 

In  the  present  instance,  the  intention  evidently  was  to  devest 
the  wife  of  her  kgal  right  in  the  lands,  and  vest  it  in  the  hus- 
band; and  if,  in  any  case,  a  court  of  justice  would  insist  on  at 
least  a  substantial  adherence  to  the  manner  of  acknowledgment 
prescribed  by  the  law,  it  would  be  in  such  a  one  as  is  now  be- 
fore us.  The  conveyance  from  Mercer  and  wife  to  Thompson^ 
and  the  reconveyance  of  Thompson  to  Mercer^  bear  equal  dates, 
and  are  acknowledged  on  the  same  day  before  the  same  jus- 
tice, and  contain  the  same  consideration  money  of  eight  hun- 
dred pounds. 

I  am  therefore  of  opinion  that  this  deed  had  no  legal  effect 
against  the  heir  at  law,  after  the  death  of  the  wife;  that  the  pa- 
rol testimony  was  inadmissible  in  aid  of  the  defective  acknow- 
ledgment; and  that  the  decision  of  the  circuit  court  be  affirmed. 

Smith  J.  concurred. 

Brackf.nridge  J.  took  no  part  in  the  cause,  having  on  the 
circuit  ruled  the  point  differently  from  the  chief  justice. 

Judgment  affirmod. 


)  481 
502 


OF  PENNSYLVANIA.  481 

1808. 

Crawford  a  gams  f  B  a  r  r  v .  December 

3 1st. 
^C IRE  facias  against  a  (farn'ishee.   A  foreign  attachment  Upon  the 

against   Thomas  O'Gormond  was  laid  at  the  suit  of  the  "'^*  °[o""5f. 
plaintiff,  in  March  1803,  upon  certain  goods,  consisting  oi facias 
chairs  and  cabinet  ware,  in  the  hands  of  the  defendant;  and ^^J";^y^ ^^^ 
after  judgment  against  the  principal,  and  an  inquisition  of  da-tliejurx  must 
mages,  this   action  was  brought  against  the  garnishee.    He  ^^^^  g,',„ds^ 
pleaded  nulla  bona;  and  at  a  nisi  prius  before  Teatcs  J.  in  No-'m  the  p^arni- 
vember  last,  the  jury,  who  had  never  seen  the  goods,  found  ^^.^.^ji'^t 

that  there  were  effects  in  the  hands  of  the  defendant  to  the  finding  ef- 

fccts  ofii  ccr- 
value  of  801  dolls.  30  cents.  tain  value  in 

the  defencl- 

Levy^  for  the  defendant,  moved  the  court  to  set  aside  the 'j^^^.^^^'g^^i^^lj. 
verdict,  and  to  grant  a  new  trial,  for  several  reasons;  but  the  they  iind  the 
material  one  was,  that  the  jury  were  bound  to  find  the  speci--^"^^^^J^|^'^j!i^j 
fie  goods  or  effects  in  the  garnishee's    hands,    and  had  no  their  value, 
right,  by  a  general  verdict,  to  deprive  him  of  the  benefit  of  ,,^,^^5,';^^,  „f 
handing  them  over,  in  his  own  discharge  to  the  plaintiff.  a  special  jo- 

in support  of  his  motion  he  now  cited  the  act  of  1705,  1  St.  ' 
Lari's  60.;  the  2d  section  of  which  directs,  that  "  if  an  attach- 
*■'  ment  shall  be  made  for  goods  or  effects,  and  the  garnishee 
'•  plead  he  had  no  goods  or  effects  in  his  hands  at  the  time  of 
"  the  attachment  or  at  any  time  after,  and  the  plaintiff  prove 
"  the  contrary',  the  jury  in  such  case,  iieing  satisfied  that  the 
"  proof  is  plain  and  full,  shall  find  for  the  plaintiff,  and  say 
"  ivhat  goods  or  fjf'ects  they  find  in  the  garnishee''^  hands; 
"  whereupon  judgment  shall  i)c  entered,  that  appraisement 
"  may  be  made  of  the  said  goods  or  effects  so  found  by  the 
"jury,  and  a  precept  shall  be  granted,  requiring  the  sherifl  to 
*'  get  ihtm  appraised ;  and  if  the  garnishee  ivill  not  producr 
"  them,  then  execution  shall  be  forthwith  awarded  for  the  va- 
"  lue  thereof,  according  to  appraisement,  to  be  levied  upon 
"  the  lands,  tenements,  goods  and  chattels  of  the  garnishee." 
He  argued  that  by  this  law  it  is  clear,  that  the  garnishee  is 
answerable  for  the  value,  only  in  the  event  of  a  refusal  to  de- 
liver the  goods;  that  the  office  of  the  jury  is  limited  to  a  find- 
ing of  the  specific  goods  and  effects,  preparatory  to  an  ap- 
praisement   by    another  tribunal;    anrl    that    c.yrn    after    thf 


482  CASES  IN  THE  SUPREME  COURT 

1808.      appraisement,  it  is  competent  to   tlic   defendant  to   prevent 
(T^""^^^^^ execution,  by  giving  up  the  property  attached.  I'he  propriety 
-J,  of  the  hiw  is  obvious.  The  garnishee  may  be  justified  in  va- 

Bahry.  rious  ways,  in  pleading  nulla  bona.  He  may  contend  that  the 
goods  were  sold  to  him;  that  he  sold  them  and  was  never  paid 
for  them;  that  they  belong  to  a  third  person,  and  the  like;  and 
yet  if  the  decision  is  against  him,  he  may  prefer  a  surrender 
of  the  goods,  to  payment  of  their  value.  The  law,  therefore, 
contemplating  him  merely  as  a  stakeholder,  and  perceiving 
that  it  would  be  contrary  to  the  first  principles  of  justice,  either 
to  deprive  him  of  a  full  defence,  or  to  make  him  a  purchaser 
of  the  goods  against  his  will,  allows  him  an  alternative  after 
the  plea  is  decided  against  him.  The  present  verdict  takes  it 
away.  The  law  makes  him  a  debtor  only  after  refusal  to  deli- 
ver the  goods;  this  verdict  makes  him  so,  without  a  demand, 
and  in  spite  of  a  tender.  Whatever  may  have  been  the  prac- 
tice under  the  act,  it  cannot  repeal  a  provision  so  express.  In 
fact  a  judgment  upon  such  a  verdict  would  be  erroneous;  it 
would  be  for  the  money;  whereas  the  judgment  should  be 
qiiodjiat  appretuitio;  such  is  the  direction  of  the  law,  and  such 
is  the  uniform  practice  under  the  custom  of  London^  from 
which  the  law  is  borrowed.  Lex  Londinensis  35.  Citii  Liber' 
ties  14.  Privilegia  Lond.  257.  The  hardship  too  of  the  pre- 
sent case  is  grievous.  The  jury  never  saw  the  goods,  and  have 
given  800  df)llars,  for  what  are  not  worth  fiftv.  Now  that  the 
plea  is  found  against  him,  the  defendant  do<'s  not  wish  to  keep 
them;  and  they  shall  be  delivered  over  immediately,  upon 
condition  that  the  verdict  be  released. 

Raiule  contra.  An  instance  of  appraisement  by  a  special  in- 
quest, under  the  attachment  law,  has  never  been  known.  The 
jur\'  who  try  the  issue,  find  the  value,  which  saves  both  time 
and  expense;  and  if  the  practice  has  not  arisen  under  a  law  of 
ir22,  1  St.  Larvs  185,  which  empowers  the  court,  upon  giving 
any  interlocutory  judgment,  to  charge  a  jury  at  the  bar  to  as- 
sess the  damages,  it  is  so  completely  within  the  spirit  of  it,  as 
to  have  its  sanction.  It  is  also  the  practice  in  London^  accord- 
ing to  the  case  of  Pearsc  v.  Calcott^  (a)  which  says  that  the 
\alue  ought  to  be  found  before  judgment.  It  will  not  answer 
at  this  day  to  take  up  the  law  in  question,  without  the  practice 

(a)  Sir  W.  yones.  ^6. 


OF  PENNSYLVANIA.  48-3 

vmder  it.  No  law  has  been  more  extended  by  constructio-n.      1808. 
The  very  proceeding  by  scire  facias  is  not  to  be  found  in  itS(_;j^^^^.pQj^jj 
letter;  but  it  has  been  adopted  as  the  best  mode  of  enforcing         v: 
its  principles.  It  becomes  then  a  question,  what  is  the  spirit  of    Baury. 
the  law  in  application  to  this  case.  The  garnishee,  contrary  to 
his  dutv,  retains  the  goods  long  after  the  attachment,  and  sup- 
ports his  possession  by  a  plea  which  is  false.  In  the  mean  time 
the  goods  diminish  in  value,  or  perish  entirely  ;  and  then  he 
claims  a  release  from  the  attachment,  upon  delivering  the  da- 
maged articles,  or  upon  delivering  nothing,  in  case  they  have 
perished.  That  such  a  claim  cannot  be  supported,  seems  mani- 
fest; it  would  be  rewarding  a  breach  of  duty.  How  is  it  to  be 
defeated,  and  the  justice  of  the  case  attained?  Not  by  an  ap- 
praisement after  verdict,  for  that  must  follow  the  value  at  the 
time  of  appraisement;  no  other  fact  is  submitted  to  the  ap- 
praisers. There  is  no  way,  but  to  leave  it  with  the  jury,  who 
decide  upon  the  truth  of  the  plea,  who  receive  evidence  of  the 
delay,  and  of  its  effect  upon  the  goods  attached;  and  therefore 
if  the  principle  of  the  garnishee's  liability  beyond  the  value  at 
the  time  of  verdict  be  adopted,  they  must  be  entitled  to  fix  its 
extent;  and  the  amount  of  the  present  verdict  forms  no  objec- 
tion.  But  it  is  said  the  jury  must,  at  all  events,  find  the  speci- 
fic articles.  'I'he  necessity  of  finding  the  goods  is  at  an  end, 
if  the  garnishee  has  no  right  to  deliver  them  up  in  satisfaction. 
But  in  addition  to  this,  the   jury  have  very  inadequate  means 
of  forming  such  a  report;  the  facts  rest  in  the  knovviedge  of 
the  garnishee;  and  although,  by  an  act  of  assembly,  the  plain- 
tiff may  examine  him  upon  oath,  it  is  a  proceeding  to  whicii 
it  is  sometimes  very  dangerous  to  resort.  The  objection  to 
such  a  finding  should  come  from  the  plaintifl",  and  not  from  the 
defendant. 

Tir.dHMAN  C.  J.  Tliis  case  coiues  before  us  on  a  motion  fu 
the  defendant  for  a  new  trial.  The  defendant  is  garnishee  ilj 
a  foreign  attachment  against  Vhomas  O^Gormond.  The  plaintifl 
having  established  his  cause  of  action  against  O''(iormond^  b\ 
a  writ  of  in(|uiry  of  damages,  issued  a  scire  facias  against  the 
defendant,  who  appeared  and  pleaded  nulla  bona,  upon  whic.li 
issue  was  joined.  The  jury  found  that  ilie  defendant  had 
goods  of  O^dormrjiid  in  his  hands  to  the  value  of  eight  hundred 


484  CASES  IN  TUK  SUPHEMK  COURT 

1808.      and  one  dollars  and  thirt}  cents,  but  did  not  say  what  these 
7;  croods  were. 

CRAWFOUn° 

1,,  The  defendant,  in  support  of  his  motion  for  a  new  trial,  has 

Baury.  urged  several  reasons;  but  the  principal  one  is  this,  that  the 
jur.v  have  greatly  overvalutd  the  goods,  and  by  not  finding 
what  they  were,  have  deprived  him  of  the  benefit,  which  the 
law  allows  him,  of  delivering  them  up  to  the  plaintiff,  instead 
of  paying  the  estimated  value.  He  has  offered  to  deliver  to  the 
plaintiff  all  the  goods  in  his  possession;  but  the  plaintiff  de- 
clines to  receive  them,  and  insists  on  having  the  amount  of 
the  jury's  valuation  in  money. 

It  does  not  appear  that  this  point  has  ever  been  brought 
before  the  court.  It  is  probable,  that  in  most  cases  the  garni- 
shee has  either  given  up  the  goods  without  contest,  or  a  debt 
due  from  the  garnishee  has  been  attached;  in  which  case  there 
would  be  no  goods  to  give  up.  The  court  must  now  decide 
the  construction  of  the  attachment  act,  which  was  made  so 
long  ago  as  the  year  1 705.  By  the  second  section  of  this  act, 
(1  St.  Laws  60.)  it  is  enacted,  that  "  if  an  attachment  shall 
*'  be  made  of  goods  or  effects,  and  the  garnishee  plead  he  had 
*'  no  goods  or  effects  in  his  hands  at  the  time  of  the  attach- 
"  ment,  or  any  time  after,  and  the  plaintiff  prove  the  contrarj^ 
*'  the  jury  in  such  case,  being  satisfied  that  the  proof  is  plaia 
**  and  full,  shall  find  for  the  plaintiff,  and  say  what  goods  or 
"  effects  thetj  find  in  the  garnishee's  hands;  whereupon  judg- 
"  ment  shall  be  entered  that  appraisement  may  be  made  of 
"  the  same  goods  or  effects  so  found  by  the  jury,  and  a  pre- 
"  ccpt  shall  be  granted,  requiring  the  sheriff  to  get  the  same 
^'  appraisedj  and  if  the  garnishee  will  not  produce  them.,  then, 
"  execution  shall  be  forthwith  awarded  for  the  value  thereof 
"  according  to  the  appraise}nent^  to  be  levied  upon  the  lands 
"  and  tenements,  goods  and  chattels  of  the  garnishee."  By 
the  Jburth  section  it  is  provided  that  after  judgment  obtained 
by  the  plaintiff,  he  shall,  before  sale  and  after  execution  ig 
awarded^  find  security  that  if  the  defendant  in  the  attachment 
shall  within  a  year  and  a  day  come  into  court,  and  disprove 
the  debt  recovered  by  the  plaintiff  against  him,  or  discharge 
the  same  with  costs,  that  then  the  plaintiff  shall  restore  the 
said  goods  or  the  value  thereof. 

It  seems  extremely  clear  that  the  object  of  this  law  was  to 
procure  for  the  plaintiff,  sa;isfaction  of  his  debt  out  of  the 


OF  PENNSYLVANIA.  485 

goods  of  the  defendant;  and  that  the  garnishee  was  not  to  be      1808. 
liable,  unless  he  refused  to  produce  those  goods  after  it  had  7.  " 

been  found  by  verdict  that  they  were  the  property  of  the  de-  ^. 
fendant.  The  jury  are  expressly  directed  to  say  what  goods  or  Baruy. 
effects  they  find  in  the  garnishee's  hands,  in  order  that  an  ap- 
praisement may  be  made  of  them.  It  seems  to  have  been  the 
practice  for  the  jurij  to  value  or  appraise  the  goods;  and  to 
this  I  see  no  objection,  although  not  strictly  conformable  to 
the  act,  because  it  saves  the  expense  of  a  writ  of  appraisement. 
But  there  is  no  authority  for  the  jury,  by  any  mode  of  finding, 
to  take  from  the  garnishee  the  right  of  surrendering  the  goods 
and  discharging  himself  from  the  obligation  of  paying  the 
value.  There  is  not  one  word  in  the  act,  which  looks  like  an 
intent  to  charge  the  garnishee  if  he  offers  to  produce  the 
goods.  The  plaintiff's  counsel  have  argued  that  it  is  extremely 
difficult  to  prove  exactly  what  the  goods  are.  This  is  verv  true; 
and  to  assist  the  plaintiff  in  that  respect,  it  is  provided  by  the 
act  of  28th  September  1789,  (2  St.  Laws  733)  that  interroga- 
tories may  be  administered  to  the  garnishee,  which  he  shall 
answer  on  oath.  It  is  objected  that  the  plaintiff  may  have  no 
confidence  in  his  oath.  To  this  I  can  only  say,  that  if  the 
plaintiff  will  go  to  trial,  without  taking  the  examination  of  the 
garnishee,  and  without  satisfactory  evidence  to  prove  that  the 
goods  in  his  hands  are  the  property  of  the  defendant,  and  to 
shew  what  the  goods  are,  he  has  no  right  to  expect  a  verdict 
in  his  favour;  because  he  affords  the  jury  no  sufficient  ground 
to  discharge  the  duty  required  of  them  by  law. 

If  the  plaintiff  will  accept  the  goods  offered  by  the  garni- 
shee, there  will  be  no  occasion  for  another  trial.  If  he  will  not, 
I  am  of  opinion  that  there  should  be,  a  new  trial  to  supply  the 
defect  of  this  verdict. 

Yeates  J.,  Smii'h  J.,  and  Hrackenridge  J.  concurred. 

New  trial  nisi. 
Vol.  I.  3  Q 


486  CASES  IN  THE  SUPREME  COURT 

1808. 
SattOiiay,  Lessee  of  Hill  against  W^est  and  others. 

Dcci  lubcr  " 

olSl. 

After  suii  A  ^  amicable  ejectment  was  brought  by  the  plainlifF  against 
bivujj:ht,  one  iX   ti^e  defendants,  to  H/arch  term  1798  of  this  court,  for 

<n  till'  lU"- 

ionilants  some  lots  in  Pliilaflelphin^  with  a  view,  by  trying  the  title,  to 
(Ill's,  ami  determine  to  which  partv  the  commonwealth  should  grant  a 
is  entered  patent.  A  casc  was  finally  made  for  the  opinion  of  the  court; 
at^amst  both  .jjj^^l  j^fj^,^  argument  it  was  decided  for  the  plaintiff,  bv  three 

Error  is  .  ^  .  . 

brought  to  a  judges  agamst  one,  and  a  judgment  entered  accordingly  at 

superior  December  term  1804.  A  writ  of  error  was  brought  to  the  high 
court,  •  c  . 

where  the     court;  but  tor  want  of  an  agreement  below  to  turn  the  case  into 

writ  IS  non    ^  special  verdict,  the  defendants  lost  the  benefit  of  their  writ, 

pressed;  r  ^  ' 

and  ilun  up- and  suffered  a  now /?;-05.  They  then  brought  error  coratn  voh'iSy 
on  error        ^^^  assigned  for  error  the  death  oi Nicholas  ToiinsTt  one  of  the 

coram  voois,  °  "^ ' 

t!  e  death  of  defendants,  in  August  1798. 

one  of  the 

defendants 

before  judg-  Hallowell^  on  a  former  day,  obtained  a  rule  to  shew  cause  why 
nrient,  as-      ^j^^  record  should  not  be  amended  by  entering  at  this  time 

signed.  _  . 

Amendment  a  suggestion  of  the  defendant's  death,  with  the  same  effect  as  it 
permitted,     j^.  j^^^  i^^^^,^  ^1^^^^  before  judgment. 

by  entering"  a  .to 

suggestion  In  support  of  the  rule,  he  now  argued  that  it  was  a  naatter  of 
fend  int'l'  course  to  permit  an  amendment  of  this  kind  to  attain  the  real 
death,  with  justice  of  the  case.  The  stage  of  the  cause  at  which  the  motion 

tl  e  same  ef-  •  ...  .      '    ^     r  i^  l  i^ 

feet  as  if  it     ^^  made  IS  immaterial;  lor  amendments  may  be  made  at  any 
had  been       time,  if  the  record  is  in  court;  as,  after  error  from  a  court  in  Ire- 
t'udL'-mcnt      l^ind  to  a  court  in  England;  Clements  v.  Walker  (a),  or  from  a  base 
court  to  a  superior  one.  Z)rt?//^6'r.?v.  Pender  (U).  So  after  error  for 
a  verdict  and  judgment  beyond  the  damages  in  the  declaration, 
there  may  be  an  amendmentby  remittitur; Pickwoodv.Wrightfc)^ 
Fury  y.  Stone  (d);7ind  the/?o.9^f«maybe  amended  by  the  judge's 
notts;  Doe  V.  Perkins  (^e^.  This  very  kind  of  amendment  has  been 
allowed.  As  where  one  of  two  plaintiffs  died  before  interlocutory 
judgment,  and  the  suit  went  on  to  execution  in  the  name  of 
both;  after  a  motion  to  set  aside  the  proceedings  for  irregula- 
rity, a  suggestion  of  the  death  was  permitted  on  the  roll.  Ne-wn- 
ham  V.  Laxv.{f)  The  case  of  Hamiltonv,  HoUomh  (^g)  is  in 
point.    The  judgment  was  against  two  defendants,  one  being 
dead;  error  coram  vobis  brought,  and  amendment  allowed. 

(a)  4  Burr.  2157.  (d)  2  DjIL  185.  (/)  S  D.  &  E.  577. 

{b)  1  WiU.  337.  (e)  3  D.  CV  E.  749.  (^0  yohmon'-^  cases  29 

(rMJI.  Blaci.  643. 


OF  PENNSYLVANIA. 

Dallas  and  Ingersolly  contra,  admitted  that  amendments  were 
generally  subject  to  the  discretion  of  the  court;  but  that  they" 
were  allowed  only  to  attain  thejustice  of  the  case;  and  that,  in 
granting  them,  the  court  always  seize  upon  equitable  circum- 
stances. They  contended  that  the  present  amendment  should 
therefore  not  be  permitted,  unless  the  party  consented  to 
terms.  There  was  a  difference  of  opinion  among  the  judges 
of  this  court  upon  the  merits;  and  the  defendants  lost  the  be- 
nefit of  a  revision,  by  an  accidental  omission  in  the  case  stated. 
They  can  never  enjoy  it,  imless  a  reargumentis  made  a  condi- 
tion of  the  amendment.  And  without  such  a  condition,  the 
amendment  will  not  come  within  the  spirit  of  the  rule,  under 
which  all  amendments  are  made;  for  equitable  circumstances 
will  be  disregarded,  and  the  justice  of  the  case  will  not  be  at- 
tained. No  case,  however,  except  that  of  Ha/ni/ton  v.  Holcomb 
from  New  York^  has  ever  gone  so  far  as  to  allow  the  insertion 
of  a  new  fact  after  error  coram  vobin.  And  the  case  of  Newn- 
ham  V.  Laxv^  there  relied  upon  as  in  point,  certainly  is  not  in 
point;  for  error  was  not  brought. 

Rawle  in  reply.  The  end  of  the  amendment  is  to  support  the 
substantial  justice  of  the  case;  which  certainly  is  no  way  aflected 
by  one  of  the  defendants  dying  before  judgment.  If  we  are  to 
belaid  under  terms,  it  must  be  because  justice  demands  it.  But 
what  justice  is  there  in  granting  a  second  argument,  when  the 
court  itself  did  not  ask  it,  and  upon  a  full  hearing  decided  three 
to  one?  If  it  were  done  in  this  case,  amendments  after  verdict 
could  never  be  obtained  without  consenting  to  a  new  trial.  The 
power  of  the  court  is  almost  self-evident.  Bringing  error  does 
not  prevent  amendments;  this  is  a  settled  principle.  An  amend- 
ment may  be  made  consisting  of  this  kind  of  new  fact,  accord- 
ing to  Ncxvniunn  v.  Law.  This  is  also  settled.  It  follows  then, 
necessarily,  that  bringing  error  does  not  prevent  an  amentlinent 
consisting  of  this  new  fact:  that  is  the  death  of  one  defendant 
before  judgment. 

TiLGiiMAN  C.  J.  dilivered  the  court's  opinion. 

This  is  a  motion  to  amend  the  record  by  entering  a  suggcs 
tion  of  the  death  oi  Nkliolaa  Toun^,  one  of  the  defendants,  who 
died  before  the  judgment. 


487 

1808. 

Lessee 
of 

HiLt 

X'. 

West; 


488  CASES  IN  THE  SUPREME  COURT 

1 808.  The  cases  cited  in  support  of  the  motion  arc  sufficient  to  shew 

,  the  power  of  the  court;  and  it  is  a  power  which,  generally 

of  speaking,  tends  very  much  to  the  promotion  of  justice,  iiut  the 

Hill  defendants'  counsel  contend  that  it  ought  not  to  be  exercised 

,-,^'*  in  this  instance,  because  it  tends  to  injustice.   And  how  do 

W  EST. 

they  shew  this?  Why  by  proving  that  when  they  carried  this 
cause  to  the  lute  high  court  ot  errors,  they  were  prevented 
from  arguing  the  merits,  because  the  case  suited^  on  which  this 
court  decided,  did  not  appear  on  the  record.  This  being  the 
case,  they  think  it  hard  that  they  should  not  have  a  second  ar- 
gument. As  the  case  was  fully  argued,  and  deliberately  deci- 
ded in  the  time  of  the  late  chief  justice  Shipptn^  the  court  can- 
not suppose  thiit  there  is  any  thing  like  hardship  in  the  de- 
fendants being  bound  bv  that  decision.  We  must  look  to  the 
consequences  of  the  precedents  we  establish.  If  terms  of  this 
kind  are  imposed  on  the  plaintiff  in  this  action,  with  what 
propriety  can  they  be  refused  in  the  numerous  cases  which 
must  occur  where  amendments  in  form  are  asked  after  a 
trial  of  the  merits?  The  court  feel  themselves  bound  to 
adopt  amendments  of  this  nature,  as  far  as  is  consistent  with 
their  lawful  authority.  Nor  will  they  be  disposed  to  fetter 
them  with  conditions,  except  in  extraordinary  cases.  They 
are  of  opinion  in  this  case  that  the  rule  should  be  made 
absolute. 
<  .  ^  Rule  absolute. 

^    /       h  h^ 


Santrda\,        LcSSCC  of  Dl  LWOR  TH  2iX\di  OthtYS,  aS^ttltlSt   SiNDERLING 

t)cc      '' 

31st 


December  ,  t  Jl*  . 

and  Lewis.  ^---^ 


It  is  now  a    X)  Y  Consent  of  parties,  judgment  was  entered  for  the  plain- 


B 


that  interest  "^^  *'^  ^^  ^^'^  ejectment,  subject  to  the  payment  of  such  sum 
is  recover-  of  money  as  should  be  found  due  to  Mr.  Lewis ^  as  executor 
ney  lent  and  ^"^  residuary  devisee  of  Bc7ijamin  Fuller.  This  question  was 
advanced;  tried  at  a  nisi  prius,  before  Mr.  Justice  Teates^  on  the  6th  in- 
appliesVo"  ^  stant;  when  the  jury  found  for  Mr.  Lewis  2,936  dollars  40  cts. 

lo.i.  s  i!.a.de 

when  the  law  was  held  to  be  otherwise. 

A  trustee  is  entitled  to  liTtercst  upon  advances  made  for  the  use  of  cestui  que  trust,  to 
supply  the  deficiency  of  the  fund.  He  is  also  entitled  to  an  allowance  for  depreciated  pa- 
per money  paid  him  during  tlie  war,  for  rent  of  the  trust  estate,  and  for  expenses  incurred 
in  ererting  proper  and  necessary  buildings  upon  it,  although  the  cestui  que  trust  was  not 
consulted. 


OF  PENNSYLVANIA.  489 

and  now,  upon  a  motion  for  a  new  trial  by  the  plaintiff,  his      1808. 
Honour  reported  the  facts  in  substance  as  follows:  Lessee" 

of 
About  the  year  1770,  the  rev.  Williafu  Sturgeon^  a  minister  Dilvorth 
of  the  protestant  episcopal  church  in  Philadelphia^  being  in    ^* 
great  distress,  and  having  several  children,  some  of  whom      ung. 
were  very  young,  his  congregation  made  a  subscription  ot 
about  400/.  and  confided  the  money  to  the  rev.  Jacob  Diichcy 
Joseph  Donaldson^  and  Benjamin  Fuller^  "  to  be  by  them  laid 
"  out  in  the  purchase  of  a  small  piece  of  ground,  or  in  such  other 
*'  manner  as  to  them  should  seem  best,  for  the  support  of  Mr. 
"  Sturgeon^  and  the  maintenance  and  education  of  his  younger 
"  children."  The  execution  of  the  trust  was  left  to  Fuller^  who 
received  the  money,  and  purchased  with  it  about  63  acres  of 
land  near  the  city  (the  premises  in  the  ejectment);  the  title  ta 
which,  he  took  in  his  own  name, having  paid  more  for  the  land 
than  the  amount  of  the  charitv.  Siursrcon  died  in  November 
1770,  having  lived  but  a  short  time  on  the  land.  Fuller  then 
took  charge  of  his  three  minor  sons,  who  were  particularly  the 
objects  of  the  trust,  put  them  to  school,  and  defrayed  the  ex- 
pense of  their  maintenance  and  education.   When  they  left 
school,  they  were  bound  out  as  apprentices;  and  to  two  of  them 
when  they  came  of  age,  the  one  in  1 783,  and  the  other  in  1 786, 
he  gave  100/.  each,  to  assist  them  in  commencing  their  trade. 
I'he  third  son   died  joung.    The  premises  were  rented,  and 
the  rents  received  by /'w/Zt-r,  until  A^otr/«/'er  1799,  when  he  died. 
Part  of  the  rents,  reserved  upon  a  lease  for  five  years  com- 
mencing in  March  1777,  were  paid  in  depreciated  paper  mo- 
ney, by  which  a  loss  was  sustained;  and  when  the  youngest 
son  came  of  age,  the  annual  interest  of  the  money  which  Ful- 
ler had  advanced  beyond  the  rents,  exceeded  the  annual  rent. 
About  the   year   1 789,  two  of  the  sons  being  dead,  and  the  < 

third  absent,  he  expended  upwards  of  200/.  in  building  a  plain 
stone  house,  and  making  necessary  repairs  on  the  land;  and 
from  that  time,  the  balance  against  the  estate  increased  rapid- 
ly. Fuller  was  not  negligent  either  in  attention  to  the  children, 
or  in  the  manngement  of  the  estate.  He  many  times  spoke  of 
it  as  their  estate,  and  mentioned  it  in  one  or  two  wills,  after- 
wards revoked.  But  upon  their  coming  of  age,  it  did  not  ap- 
pear that  he  told  them  of  their  interest  in  the  land;  nor  did  the 
lessors  of  the  plaintiff,  who  were  the  surviving  brother  and  sis- 


490  CASr.S  IN  THE  SUPREME  COURT 

1808.      f^"'  ascertain  the  trust  until  his  death,  when  the  ejectment  was 
~T^==«o     brought.   Shortly  before  that,  he  ortercd  to  lease  k  for  twelve 
of         years;  and  he  once  told   Mr.  Leiois,  "  people  say  the  estate 
DiLwoKTHdoes  not  belong  to  me,  but  I  say  it  does."  At  this  time  how- 
''•         ever  the  annual  interest  of  the  money,  advanced  by  him,  so  far 
LING.      exceeded  the  rent,  that  he  probably  took  it  for  granted  the 
children  could  never  redeem  the  estate,  and  therefore  that  it 
would  remain  his  property.    He  kept  in  his  books  a  regular 
account  of  the  rents,  as  well  as  of  his  advances,  upon  which  he 
charged  interest;  and  at  the  end  of  each  year  he  carried  the 
balance  to  a  new  account.   In  some  instances  he  charged  inte- 
rest upon  interest,  by  calculating  it  upon  the  balance  of  the  for- 
mer year,  without  advertingto  its  being  composed  of  interest. 
After  the  ejectment  was  brought,  the  place  suffered  for  want 
of  attention;  and  the  rent  received  from  it  was  very  little.  If 
he  was  not  entitled  to  interest  on  his  advances,  nor  to  an  al- 
lowance for  the  depreciated  money,  nor  to  the  expenditures 
for  building,  and  his  residuary  devisee  was  bound  to  answer 
the  full  value  of  the  rents  as  if  the  place  had  been  kept  in  good 
order,  the  trust  owed  him  nothing;  if  on  the  contrary  he  was 
entitled,  and  the  charge  was  to  correspond  with  the  actual  re- 
ceipts, the  trust  was  in  debt  to  him  the  amount  found  by  the 
jury,  deducting  the  charges  of  compound  interest,  which  they 
were  told  by  the  counsel  to  rectify,  but  had  omitted  to  do  it. 

Gibson  and  M.  Levy  in  support  of  the  motion.  There  are  a 
few  settled  rules  that  must  govern  this  case.  By  accepting  a 
trust,  the  trustee  is  obliged  to  execute  it  with  fidelity,  and  rea- 
sonable diligencf ;  and  it  is  no  excuse  to  say  that  he  has  no  be- 
nefit from  it.  Charitable  Corporation  v.  Sutton,  (a)  He  is  never 
allowed  to  make  a  profit  by  a  breach  of  the  trust,  Earl  Powlet 
v.  Herbert;  (J))  and  if  he  forbears  to  do  what  it  was  his  office 
to  have  done,  it  shall  in  no  sort  prejudice  the  cestui  que  trusts 
Lechmere  v.  Earl  of  Carlisle,  {c)  These  principles  are  enforced 
with  peculiar  strictness  in  the  case  of  charities,  which  are  ob- 
jects of  great  favour  in  equity;  and  they  are  fatal  to  the  claim 
of  the  present  trustee,  who  has  acted  upon  a  system  to  make 
the  estate  his  own,  and  neglected  to  inform  the  cestui  que  trusts 
of  their  right,  until  by  the  accuniulation  of  principal  and  inte- 

(a)  2  Atk.  406.  {b)  1  Vez.jr.  287.  (c)  3  P.  Wms.  315 


OF  PENNSYLVANIA.  491 

vest  the  estate  is  not  worth  redemption.    Fidelity  to  the  trust,      1808. 
demanded  a  disclosure  to  the  cestui  que  trusts  in  ir86,  when     j^^gg^^ 
they  might  have  redeemed;  forbearing  to  do  it  was  a  neglect         of 
of  duty;  and  if  he  is  not  punished  for  it,  he  makes  a  profit  Dilworth 
by  a  breach  of  trust.   In  such  cases,  where  the  trustee  has  at-    £, 

•^  ....  SlNDER- 

tempted  to  impose  upon  the  charity,  the  rule  in  chancery  is  to  ling. 
cutoff  the  interest  from  the  sums  he  has  paid,  except  from  the 
time  of  their  liquidaiion  by  the  master,  and  to  make  him  pay 
costs.  Attorneif  General  v.  Brexuer\s  Company,  (a)  But  even 
considering  this  as  a  common  case  of  debtor  and  creditor,  the 
plaintiff  owes  Fuller''s  estate  nothing;  the  demand  is  made  up 
by  interest,  allowance  for  depreciated  money,  and  expendi- 
tures for  buildings.  Interest  upon  an  open  account  was  against 
all  the  decisions,  at  the  time  these  advances  were  made.  In 
Jacobs  V.  Adams  (b)  (1781),  it  was  held  that  where  no  day  of 
payment  was  fixed  for  money  lent,  interest  was  payable  only 
from  demand.  In  Henry  v.  Risk  (c)  (1788),  no  interest  upon 
an  open  account  for  goods  sold  and  delivered.  In  IVill'iams  v. 
Craig  {(i)  in  the  same  year,  no  interest  upon  an  unliquidated 
account.  At  that  time  there  were  but  three  cases  in  which  in- 
terest was  allowed  upon  an  open  account;  1.  Where  there  was 
an  express  agreement.  2.  Where  there  was  a  general  usage,  as  S 
in  the  trade  between  Enifland  and  An^erica.  3.  Where  there 
was  an  unreasonable  and  vexatious  delay;  which  can  never  be 
where  there  is  no  demand.  And  although  in  IVillingx.  Craw- 
ford (e)  (1803),  the  rule  was  said  to  have  undergone  a  change, 
vet  the  old  rule  was  recognised,  and  this  case  must  be  govern- 
ed by  it.  But  under  the  new  rule.  Fuller  would  not  be  entitled. 
Here  is  a  long  unsettled  account,  made  intricate  by  his  neglect, 
and  of  which  there  was  no  adjustment  or  demand  of  settlement 
for  nearly  30  years.  In  such  a  case,  the  uniform  rule  has  been, 
to  deny  interest.  lioddam  v.  Rylct/  (f),  and  Barwell  v.  Paries 
(j^).  fuller  should  be  charged  with  the  full  amount  of  the 
rents,  without  an  allowance  ior  d(  j)reciation.  He  has  made  a 
strict  accoimt  against  us,  and  should  be  charged  strictly.  He 
was  not  bound  to  receive  paper  money.  His  successor,  too, 
should  be  charged  with  the  injury  to  the  place,  and  with  full 
rents;  for  although  the  estate  was  considered  by  the  trustee  as 

{,!)  1  /'.  n'uis.  376.         (./;  1  Ij.iu.  ...IJ.  (if)  2  Sro.  C.  (    ^ 

;70  1  Dull.  52.  (f)  4  DalL  289. 

,1  Dull.  26.5.  r/)  3  Brn.  C  C.  239. 


LING. 


492  CASES  IN  THE  SUPREME  COURT 

1808.      '"s  own,  it  was  his  duty  not  to  k-t  it  go  to  ruin.  In  1786,  he 
J^~J*~  was  bound  to  convey  to  the  children;  his   trusteeship  being 
of         limited  to  their  minority.  Buildings,  subsequently  erected, were 
DiLwoRTHnot  within  his  authority,  nor  were  they  lor  the  benefit  of  the 
''■■         cesttti  que  trusts;  for  the  expense  has  swelled  the  balance  to  the 
complete  absorption  of  the  equitable  interest.  The  verdict  must 
be  set  aside  at  all  events;  for  the  jury  have  allowed  compound 
interest,  which  is  manifest  from  a  mere  inspection  of  the  ac- 
count. 

Rawle  :xr\di  Ingersoll  contra.  The  general  rule  is  that  a  trus- 
tee is  neither  to  gain  nor  lose;  and  in  this  case,  giving  him  the 
whole  amount  of  his  claim.  Fuller  does  not  gain  a  cent,  as  he 
charges  nothing  for  his  trouble;  giving  him  less,  he  is  out  of 
pocket  for  advances  charitably  made  to  supply  the  deficiency  of 
the  trust  fund,  and  to  improve  it.  He  never  claimed  the  estate 
as  his  own  against  the  will  of  the  cestui  que  trusts;  but  he  consi- 
dered the  probability  of  a  redemption  as  nothing,  because  the 
advances  were  beyond  the  value.  The  object  of  the  trust  was 
to  maintain  and  educate  the  minor  children.  The  rents  of  the 
land  were  not  adequate.  He  advanced  money  for  the  purpose. 
He  gave  the  sons  schooling  and  a  trade;  and  to  two  of  them 
100/.  each  to  set  them  out;  and  all  this  was  perfectly  right, 
though  it  broke  in  upon,  and  even  absorbed  the  principal  of 
the  trust;  for  the  principal  was  small,  and  was  designed  to  be 
so  applied.  Barlow  v.  Grant,  (a)  When  they  came  of  age,  his 
demand,  allowing  interest,  exceeded  the  rent;  so  that  to  have 
proposed  a  redemption,  when  they  had  no  property,  would  have 
been  idle,-  and  there  was  no  breach  of  trust  in  it,  because  the 
charity  was  not  contemplated  to  last  beyond  their  minority.  He 
however  improved  the  property  afterwards  by  buildings,  and 
great  care;  and  the  question  is  whether  he  is  to  be  charged 
with  more  than  he  received,  and  to  be  credited  with  less  than 
he  has  paid,  with  interest.  The  rule  of  interest  is  now  perfectl) 
settled,  in  opposition  to  the  old  decisions.  Interest  is  always 
due  for  money  lent  and  advanced;  and  the  notion  that  the  rule 
reaches  only  so  far  back,  and  that  to  all  loans  before,  the  old 
rule  applies,  is  contradicted  by  the  case  o(  Cravfordv.  Willing^ 
where  the  transactions  upon  which  the  debt  arose  occurred  be- 
fore the  year  1776.  That  Fuller  rendered  the  account  intricate, 

[a)  1  rm/.  255. 


OF  PENNSYLVANIA.  453 

is  not  the  fact;  it  was  plain  enough;  and  the  only  reason  why  it      1808. 
was  not  settled,  was  because  there  was  no  person  to  settle  it,     Lessee 
and  to  pay  him  a  certain  sum,  for  an  uncertain  value  in  return.         of 
Interest  upon  the  advances  of  a  trustee  has  been  allowed  after  Dilworth 
a  greater  lapse  of  time,  in  CeciPs  Lessee  v.  Korbinan^  {a)  in  this    „ 
court.  The  cases,  in  which  it  has  been  disallowed,  have  been      tiuo. 
cases  of  fraud,  and  of  such  gross  negligence  as  produced  great 
mischief  to  the  debtor.  So  were  Attorney  Gen.  v.  Brewers'* 
Company^  and  Boddam  v.  Ryley.  As  to  the  depreciated  money,  it 
was  a  legal  tender;  for  the  act  of  31st  31ay^  1780,  M'-Kean's  ed, 
388,  did  not  suspend  the  tender  law  as  to  contracts  made  after  1st 
November  1779,  or  where  a  distress  might  be  made^  which  was 
our  case.  That  law  was  not  generally  repealed  until  June  1781, 
and  then  there  was  a  saving  of  guardians  and  trustees  who  had 
received  such  money  bona  fide.  The  rents  since  Fuller'' s  death 
have  fallen  in  consequence  of  the  ejectment;  during  which,  ac- 
cording to  the  plaintiff's  argument,  it  was  neither  our  interest 
nor  our  duty  to  improve  the  place;  for  the  more  we  expend,  the 
less  we  are  to  get.   And  as   to  the  buildings,  they  were  essen- 
tially necessary;  the  place  was  not  tenantable  without  them, and 
the  cestui  que  trusts  were  not  present  to  be  consulted.  Had  they 
been  costly  or  useless,  the  case  would  have  been  different;  but 
in  consequence  of  this   improvement,  and  the  great  rise  in 
lands,  the  estate  may  be  now  redeemed  better  than  at  any 
other  time.  The  compound  interest  is  a  matter  of  calculation, 
and  we  are  ready  to  correct  it.  The  jury  omitted  the  direction 
we  gave  them  at  the  trial. 

Reply.  At  the  time  of  these  advances,  monej'  lent  bore  no 
interest  eithir  here  or  in  Eni^land.  The  benefit  attending  loans, 
at  this  day,  ought  not  to  be  extended  to  past  transactions,  be- 
cause it  was  not  in  the  contemplation  of  either  borrower  or 
lender,  and  formed  no  part  of  the  implied  contract.  What  the 
lender  could  not  have  expected  to  receive,  there  is  no  proprie- 
ty in  allowing  him.  The  act  of  1780  merely  excepts  contracts 
after  November  1779,  and  cases  in  which  a  distress  might  be 
made;  that  is  where  it  was  made.  And  the  reason  of  both  is  ob- 
vious: as  to  the  one,  the  contract  must  have  been  made  with  a 
knowledge  of  the  lender  law;  as  to  the  other,  if  you  compelled 
the  tenant  to  pay,  it  was  fit  he  should  pay  in  the  current  paper; 
and  accordingly  suits  at  law  were  excepted  as  well  as  distresses. 

{a)  Supra.  135 

Vol.  I.  3  R 


494  CASES  IN  THE  SUPREME  COURT 

1808.  TiLGHMAN   C.   J.,   after   stating  the  facts,  delivered  the 

Lessee     op'"ion  of  the  court  as  follows. 

of  Several  reasons  have  been  urged  by  the  counsel  for  the 

DiLwoRTH  plaintiff  in  support  of  their  motion  for  a  new  trial.  These  may 
c      "be  reduced  to  the  following;  heads: 
LING.  1.  No  interest  ought  to  have  been  allowed  on /"w/Zer'^  ad- 

vances. 

2.  No  allowance  should  be  made  to  Fuller  for  depreciated 
paper  money. 

3.  No  allov/ance  should  be  made  for  money  expended  in 
buildings  after  the  youngest  child  came  of  age. 

4.  The  jury  have  allowed  compound  interest. 

1.  It  seems  to  have  been  formerly  held  that  interest  was 
not  allowable  on  an  account  for  money  lent  and  advanced. 
That  opinion  gradually  declined  upon  more  mature  reflec- 
tion; and  without  citing  particular  cases,  it  may  now  be  safely 
affirmed,  that  for  a  considerable  time  past  the  settled  law  has 
been,  that  interest  is  recoverable  for  money  lent  and  advanced. 
Is  there  anv  thing  particular  in  this  case  to  distinguish  it  from 
the  general  rule?  Fidler  has  charged  no  commissions.  I  think 
he  ought  not.  The  honourable  and  charitable  trust  he  had 
undertaken  forbade  such  a  charge.  It  may  be  said  he  would 
have  been  more  charitable  if  he  had  charged  no  interest. 
True.  But  he  was  under  no  legal  obligation  to  do  so.  It  is 
material  that  the  subscribers  to  the  charity  seem  to  have  had 
no  views  beyond  the  maintenance  and  education  of  the  chil- 
dren. They  did  not  expect  that  there  would  be  more  than 
enough  for  this.  The  whole  subscription  amounted  to  408/. 
14*.  2d.  It  was  left  to  the  discretion  of  the  trustees  whether  to 
invest  the  money  in  land  or  not.  Now  if  it  had  remained  in 
money,  it  would  have  been  expended  as  occasion  required. 
After  it  was  invested  in  land,  either  the  object  of  the  charity 
must  have  been  violated,  or  money  must  have  been  borrowed 
for  the  support  of  the  children.  If  Fuller  had  borrowed,  he 
must  have  paid  interest,  which  would  have  fallen  on  the  trust 
estate.  Now  where  is  the  difference  to  the  children,  whether 
interest  is  paid  to  Fuller  or  to  a  stranger?  There  is  no  just 
cause  of  complaint,  because  the  jury  have  allowed  interest. 

2.  On  the  second  point  little  need  be  said.  The  plain  prin- 
ciples of  justice  demand  that  a  trustee  who  has  acted  to  the 
best  of  his  judgment  ought  not  to  be  money  out  of  pocket. 
There  is  no  ground  for  saying  that  Fuller  zvantonly  received 


OF  PENNSYLVANIA.  495 

bad  money.  We  know  that  during  the  war  of  the  revolution,      1808. 
it  was  not  prudent  to  refuse  the  current  paper.   In  consider-  ~T^~  g^. 
ation  of  this,  it  is  provided  by  act  of  assembly  that  guardians         of 
and  trustees  shall  not  be  chargeable  with  losses  occasioned  by  Dilwouth 
the  receipt  of  such  money    And  if  there  was  no  act  of  assem-    ^    ^'" 
bly  on  the  subject,  I  should  not  hesitate  to  say  that  the  law      ling, 
would  be  the  same. 

3.  As  to  the  money  expended  in  buildings  and  repairs, i^?^//fr 
would  have  acted  with  more  prudence  and  propriety,  if  he  had 
informed  the  children,  when  they  came  of  age,  of  the  exact 
state  of  the  trust,  and  taken  their  advice,  whether  to  keep  the 
place  any  longer,  or  sell  it  at  once,  and  thus  close  the  business. 
If  he  had  laid  out  the  money  in  improper  buildings,  it  would 
have  been  but  reasonable  to  throw  part  of  the  expense  on  him. 
But  that  was  not  the  case.  He  made  no  other  than  plain  solid 
buildings,  very  necessary  for  the  land,  and  by  which  its  value 
has  been  greatly  increased.  It  is  certain  that  the  balance 
against  the  trust  estate  has  increased  very  much  since  the 
children  came  of  age;  and  this  increase  has  arisen  altogether 
from  those  buildings,  and  the  interest  on  Fuller^s  account. 
But  on  the  other  hand,  the  children  have  the  advantage  of 
the  great  rise  in  the  value  of  land.  If  it  appeared  that  Fuller 
had  intentionally  deceived  them  as  to  the  nature  of  their 
rights,  or  that  he  had  ever  formed  a  design  of  making  the 
estate  his  own  to  their  prejudice,  it  would  be  proper  to  punish 
him  by  striking  from  his  account  the  expenditure  for  the  build- 
ings; but  that  not  being  the  case,  it  is  reasonable  to  allow  it. 

4.  In  the  last  objection  to  the  verdict  there  is  weight.  Al- 
though we  do  not  exactly  know  in  what  manner  the  jury  stated 
the  account,  yet  there  is  sufficient  reason  to  suppose,  that  in 
some  instances  they  allowed  charges  of  compound  interest. 
But  the  defendant's  counsel  having  consented  to  correct  all 
errors  of  that  kind,  there  is  no  occasion  for  a  new  trial.  The 
court  recommenrl  that  the  accoimt  should  be  made  out  on  each 
side,  correcting  the  errors  of  compound  interest.  If  the  two 
accounts  thus  made  out  agree,  it  may  be  taken  for  granted, 
that  the  calculation  is  right.  If  they  differ,  the  court  reserve 
the  right  of  deciding  between  them. 

On  the  whole  of  the  case,  the  court  think  there  is  no  cause 
for  a  new  trial,  the  defendant  consenting  to  correct  errors  of 
compound  interest  under  their  direction. 

New  trial  refused. 


496  CASES  IN  THE  SUPREME  COURT 

1808. 

Saturday,  ^  •      ^  "O 

December  LaNBY  ttgainst  KiDGWAY. 

31st. 

Ifasuithas      A     SHORT  time  after  the  commencement  of  this  action, 

been  carried   /A     ^      ,  ,•,      •  •  r       j    i  i      •  /•      ,  • 

onfortheusc  Lanoy^  while  m  prison  lor  debt,  assigned,  inter  alta,\\\% 

of  ;in  as-       claim  against  the  defendant  to  a  certain  Thomas  Shaw,  and  then 

signoc,  the  . 

nominal  plain  took  the  benefit  of  the  insolvent  laws.   The  action  was  after- 

tiH  being      wards  carried  on  for  the  use  of  Shaiv.  who  instructed  counsel, 

insolvent, the  ..... 

court  will      and  assisted  at  the  trial,  when  a  verdict  passed  for  the  defend- 

permit  the      a^f 

Qelendant 

after  verdict      Upon  these  facts  Hallowell^  for  the  defendant,  obtained  a  rule 

to  suerpest    upon  Shaw  to  shew  cause  why  he  should  not  pay  the  costs  of 

docket  the     suit. 

name  of  the 

assignee,  und 

will  rule  him      Raxvlc,  upon  shewing  cause,  objected  that  as  the  name  of 

to  pay  the  Sfiaxv  did  not  aj^pear  upon  the  record,  the  court  could  not  com- 
pel him  to  pay  the  costs.  The  defendant  might  before  trial  have 
suggested  the  name  of  Shaw  as  the  real  plaintiff,  or  have  ob- 
tained a  rule  for  security  for  costs  upon  the  ground  of  Canbifs 
insolvency;  but  as  he  had  neglected  to  do  either,  he  was  not 
now  to  be  assisted  by  the  court. 

Halloxvell  replied,  that  a  rule  for  security  was  out  of  the 
question,  as  Canhy  lived  within  the  jurisdiction  of  the  court; 
and  that  it  was  not  too  late  to  make  the  suggestion  now,  since 
the  facts  shewed  that  Shazv  had  been  all  along  the  real  plaintiff 
in  interest. 

Per  Curiam.  It  is  agreed  that  this  suit  was  carried  on  in 
the  name  of  the  plaintiff  for  the  use  of  Thomas  Shaw^  who  ob- 
tained an  assignment  from  the  plaintiff  shortly  before  he  was 
discharged  by  the  insolvent  act.  The  court  are  of  opinion  that 
under  these  circumstances,  Shaw  may  be  considered  as  the 
substantial  plaintiff,  although  his  name  does  not  appear  on  the 
record.  The  defendant  might  have  pleaded  that  the  action  was 
for  his  use,  and  made  a  set-off  of  a  debt  due  from  him.  Having 
used  the  process  of  the  court  for  his  exclusive  benefit,  it  is  rea- 
sonable that  he  should  be  answerable  for  the  costs.  The  rule  is 
therefore  to  be  made  absolute;  but  it  must  be  entered  on  the 
record,  at  the  suggestion  of  the  defendant,  that  the  suit  was  for 

the  use  of  Shazv. 

Rule  absolute. 


A 


OF  PENNSYLVANIA.  497 

1808, 

Thomas  Ketland,  surviving  partner  of  J.  Ketl  ah  b,  Saturday, 
against  Medford  surviving  partner  of  Willis.       318^"*  " 

FOREIGN  attachment  at  the  suit  of  the  plaintiff  was  ^^.^^re  the 
laid  upon  the  effects  of  the  defendant  in  the  hands  ofthe  debt 
yohn  Lisle,  returnable  to  March  1801.  In  April  following,  ^"e  by  his 
Lisle,  who  was  the  agent  oi  Medford  for  receiving  and  paying  and  the  lattei' 

the  debts  of  Medford  and  Willis,  and  had  been  previously  di- V-^  P^'^!  "®" 

r  .  1-11  'I'ing',  the 

reeled  by  Medford  to  stand  suit,  entered  special   bail,  and  court  will 

dissolved  the  attachment.  He  afterwards  consented  to  a  refer- ""*'  *^  ^^% 

instance  ot 

ence;  upon  which  3,302  dolls.  23  cts.  were  awarded  to  the  plain- the  princi- 

tiff,  and  the  award  confirmed.  By  an  article  between  Ketland'^^''^'.^^^ . 

.  f.  P  ag'ainst  the 

and  Lisle,  a  few  days  prior  to  the  reference,  the  former  agreed  wish  ofthe 
to  accept  from  the  latter  12.y.  &d.  in  the  pound,  ofthe  sum  that ''*''' '^'■'^'''■^" 

I  _  •        _  ...      I'xoneretur 

should  be  awarded,  as  a  full  discharge  oi  Lisle  from  his  liabil- upon  the  bail- 
ity  for  the  debt  as  bail;  Medford  being  at  that  time  in  ^'^g^^nd,^^^^^^^^^^^^^''^^^ 
and  his  bail  unable  to  surrender  him.  And  a  short  time  after  has  been  ta- 
the  award.  Lisle  paid  the  12*.  6^^.;  and  at  his  instance  Ketland 
assigned  the  judgment  to  Preston  and  Smithfield.  Whether 
Lisle  paid  the  money  with  the  funds  of  J/f<^or<y,  did  not  ap- 
pear; he  claimed  to  be  a  large  creditor  of  Medford;  and  upon 
the  latter  coming  to  America,  Lisle  took  out  a  bail-piece,  with  a 
view  to  take  him.   Ketiand  declared  himself  satisfied,  and  that 
he  had  no  claim  against  Medford. 

Ingersoll,  for  the  defendant,  moved  to  enter  an  exoneretur 
upon  the  bail-piece;  and  upon  the  above  facts  appearing  in  evi- 
dence, he  contended,  that,  as  Lisle  had  acted  as  the  agent  of 
Medford  in  pa\ing  the  money,  he  had  no  right  to  surrender 
him,  because  he  had  taken  the  step  for  the  accommodation  and 
safety  of  his  principal,  and  not  to  secure  a  power  to  himself. 
And  in  the  next  place,  that  the  money  being  paid,  and  the  bail 
discharged  from  all  liability,  he  had  no  right  to  surrender  him, 
because  the  right  to  surrrender  was  a  mere  defensive  riglit, 
and  founded  exclusively  upon  the  responsil)ility  of  the  bail. 
That  in  fact  Lisle  was  no  longer  l)ail ;  the  recf)gnisance  was 
extinct;  the  condition  of  it  was,  that  if  the  defendant  shouUl  be 
condemned  in  the  action,  he  should  satisfy  the  costs  and  con- 
demnation, or  render  himself  to  the  custody  of  the  sheriff,  or 


498  CASES  IN  THE  SUPREME  COURT 

1808.      the  ball  should  pay  the  costs  and  condemnation  for  him.  Here 
Keti.and   ^^^  ^^*'  ^^^  P^''^  ^^^  costs  and  condemnation,  and  therefore 

V.         the  recognisance  was  at  an  end  by  performance. 
Medford. 

Levi/  and  Tilghmaii  for  the  bail.  It  is  well  known  that  bail 
are  the  most  favoured  of  all  sureties;  and,  as  it  is  said  in  6  Mod. 
231.,  they  have  their  principal  always  upon  a  string,  and  may 
pull  him  in  whenever  they  please.  This  is  an  application  by  the 
principal  to  pull  the  bail  out  of  the  bail-piece ;  it  is  of  the  first 
impression;  and  in  this  summary  way,  before  the  bail  is  taken, 
and  where  facts  are  disputed,  should  not  be  listened  to.  The 
only  ground  upon  which  it  can  be  supported,  is,  that  the  prin- 
cipal has  paid  the  debt  himself,  or  the  bail  has  paid  it  out  of 
his  funds.  The  first  is  not  pretended;  and  the  latter  we  deny.  He 
paid  it  out  of  his  own  funds,  as  any  third  person  might;  and  the 
plaintiff  became  a  trustee  of  the  judgment  for  his  use.  It  was 
accordingly  assigned  at  his  instance  to  Preston  and  Smithjield. 
Bail  may  certainly  buy  the  judgment;  and  if  he  does,  there  is 
no  ground  for  depriving  him  of  any  of  his  remedies.  [C.  J. 
TiLGHMAN.  The  question  is  not  whetlier  he  may  buy  the 
judgment;  but  what  has  become  of  the  recognisance.]  If  he 
had  paid  under  the  recognisance,  as  in  debt  or  scire  facias 
upon  it,  there  might  be  some  ground  for  the  opposite  argu- 
ment; but  here  he  has  paid  it,  as  a  stranger  might,  without 
action,  and  with  an  intention,  at  the  time,  to  use  the  judg- 
ment, by  directing  an  assignment  of  it.  Indeed  it  is  question- 
able whether  the  court  has  any  power  to  grant  the  motion 
against  the  consent  of  the  bail,  who  is  no  party  on  the  record; 
but  surely  as  the  application  is  to  the  equitable  jurisdiction  of 
the  court,  as  it  is  said  in  Martin  v.  O'-Hara^  (a)  and  the  bail 
has  paid  all,  and  the  principal  nothing,  they  will  not  interfere 
to  prevent  his  getting  the  money  back. 

Rawle  in  reply.  It  is  true  that  bail  hold  their  principal  upon 
a  string;  but  here  the  bail  has  cut  the  string,  and  wishes  to  get 
hold  of  it  again.  He  has  terminated  the  recognisance  by  pay- 
ment; not  payment  as  a  stranger,  but  payment  as  bail;  for  the 
article  of  agreement  recites  that  he  was  unable  to  surrender 
his  principal;  and  the  compromise  was  in  full  discharge  of  his 
liability.   We  do  not  come  then  to  the  equitable  jurisdiction 

(a)  Coixp.  824. 


OF  PENNSYLVANIA.  499 

of  the  court;  for  the  recognisance  is  gone.  It  is  not  as  if  it      1808. 
were  in  force,  and  the  bail  applied  for  a  discharge;  but  it  is  as  i^j..j-lahd 
if  an  execution  had  issued  upon  a  judgment  that  had  been  paid.         v. 
Lisle  however  has  no  equity;  he  made  the  agreement  without  Medford. 
the  privity  of  Medford;  and  after  having  discharged  the  re- 
cognisance, he  wishes  to  set  it  up.  If  he  can  do  it  now,  he 
may  at  any  distance  of  time,  and  may  constitute  himself  the 
gaoler  of  Medford  whenever  he  pleases. 

TiLGHMAN  C.  J.  delivered  the  judgment  of  the  court. 

This  is  a  motion  on  the  part  of  the  defendant  to  have  aa 
exoneretur  entered  on  the  bail-piece;  the  bail  not  joining  in  the 
motion,  but  opposing  it. 

The  court  have  no  doubt  of  their  authority  to  enter  an  ex- 
oneretur, if  a  clear  case  was  made  out.  But  the  counsel  of  the 
defendant  have  shewn  no  precedent  going  the  length  they  ask. 
Without  entering  into  a  detail  of  the  facts,  this  case  presents 
two  striking  features :  one  that  the  bail  has  paid  a  large  sum 
on  account  of  the  defendant;  the  other  that  the  defendant  has 
not  paid  one  farthing.  Nor  has  he  yet  been  taken  by  the  bail. 
In  this  situation  the  court  think  it  would  be  wrong  to  interfere 
in  this  summarv  manner.  If  hereafter  the  defendant  should 
be  taken  by  the  bail,  and  it  shall  be  made  to  appear  that  the 
bail-piece  is  used  for  oppressive  and  unjust  purposes,  it  will 
be  in  the  power  of  the  court  to  grant  relief. 

The  court  are  of  opinion  that  the  motion  be  rejected. 


Motion  denied. 


lb  499f 

16s r  7l| 

'1'  2fi« 


1809. 


Insunince  Company  of  Pennsylvania  a^a'mst  Ketland.      ,     , 

'        ■'  -'  '^  Wednesday, 

Janu.ory  4lli. 
''  I  ''HE  household  furniture  of  the  defendant  was  taken  under  wIk  re  t!ic 

-*-    a  //.   fa.,  and  the  shcrilf  at  this  term  returned  his  writ  J"  ^" 
*'  levied  as  per  inventory."   Before   the  levy,  the  sheriff  had  upon  floods 
been  indemnified  by  the  plaintiff;  and  after  the  return,  a  ^t"^- {-"naant's 
ditioni  exponas  issued,  returnable  at  next  Manh  term.  On  a  possession, 
former  day  a  motion  was  made  on  behalf  of  the  sheriff  to  amend  ^v'-jhult  stay 

proceed- 
ing's and 

direct  an  issue  to  try  the  property,  upon  an  allegation  that  the  goods  belong  to  a  tliird 

person. 


500  CASES  IN  THE  SUPREME  COURT 

1809.      ^'s  return,  by  acMing"  that  the  goods  mentioned  in  the  inveii- 

T       7;       ;; "  torv,  were,  at  the  time  of  the  levy  made,  claimed  by  fames 
Ins.  Co.  of      ^   •  '  ',  ,    .  ,        .  r 

Penn.     "  ^'J'^  ^""  others  as  their  property,  by  virtue  ol  an  assignment 

V.         "  bv  the  defendant,  dated  the  4th  of  Januarij   1806;"   and 
Ketjland.  ypon  Jin  affidavit  that  it  was  his  intention  at  the  time  to  make 
this  addition   a  part  of  his  return,  but  that  it  was  omitted 
by  accident,  the  court  after  argument  permitted  the  amend- 
ment. 

Tod^  for  the  defendant,  now  moved  the  court  to  stay  proceed- 
ings on  the  execution,  and  to  direct  an  issue  to  try  in  whom 
was  the  property  of  the  goods.  He  said  that  the  sheriff  himself 
had  the  power  to  impanel  a  jury  for  this  purpose  if  he  doubted 
of  the  property,  2  Bac.  Abr.  715.;  and  that  the  court  should 
exercise  the  same  power  under  the  circumstances  of  this  case, 
though  the  sheriff  should  choose  to  decline  it. 

The  Court  asked  whether  a  precedent  for  such  a  motion 
was  any  where  to  be  found;  and  told  the  counsel  that  if  they 
thought  there  was,  they  should  have  time  to  search  for  it, 
though  it  was  the  last  day  of  the  court's  sitting;  but  the  coun- 
sel answered  that  they  were  not  aware  of  any  precedent,  and 
therefore  would  not  ask  for  time.  Whereupon 

Per  Curiam.  iMotion  denied. 

Ingersoll  with  Tod. 
Dallas  contra. 


END  OF  DECEMBER  TERM,  1808. 


OF  PENNSYLVANIA.  501 

1809> 

MARCH  TERM,  180'J. 


Thomas  Smith  Esq.,  one  of  the  Judges  of  this  court,  died 
on  Friday  the  31st  of  March  1809. 

Appointment:  Between  December  and  March  terms,  Walter 
Franklin  Esq.  to  be  Attorney  General. 


Delaware  Insurance  Company  against  Gilpin.        M-Hthiut. 

THIS  was  an  action  of  debt  upon  a  bond,  brought  and  I"  an  action 
,   -      ,    ,  ,  .       ,  ,  ,     ,       ox'dtbt  die- 

defended  by  attorney  in  the  common  pleas,   and   then  continued 

removed  by  hab.  cor.  to  this  court,  where  it  was  ^/jfC0??f7nwe^;''^fter  the  first 
,        ,    -       , "  .  •  rr>,  .  1       •       J  court  upon 

the  defendant  agreeing  to  pay  costs.    1  he  question  submitted  the  defend- 
to   the   court   was,   what   costs    were   due    to   the    plaintiff's ''"t's  agree- 
ment to  pay 
attorney.  costs,  the 

plaint ifi"'s 
attorney  is 

Condy  read  the  «th   sec.  of  the  act  of  21st  March  1806.entiikdto 

7  St.  Laxvfi,  562.,  which  directs  that  "  the  plaintiff's  attorney  ^''*^  ^'^.^  ^"^ 

.  .  .  -  'inactions 

"  shall  not  be  entitled  to  -^  judgment  fee  in  any  action  of  debt;    ended  after 

and  also  the  act  of  20th  April  179S,  for  establishing  an  explicit*^'^*^  ^^''^^  , 

r  ^  or  covwt,  and 

fee  bill,  3  St.  Laws  775.  sec.  1.,  which  allows  to  attorneys  in  before  judg- 

the  common  pleas  for  issuing /'nrc/*^  &c.  in  suits  ended  the'^l^'"'  ""^ 
'  o  /  I  Withstand- 

first  court  1  doll.  67  cts.,  if  after  the   first  court,  the  furthering  the  5th 

sum  of  1  doll.  66  cts.,  and  for  every  suit  prosecuted  '^o  j"^S"act  (f  oi 

ment,  discontinuance  &c.  four  dollars;  in  this  court,  double.  March  1806. 

He  contended  that  the  act  oi  March  1806  did  not  extend  to.^^-^Y'V^' 

the r that 

an  action  of  debt  conducted  like  this  by  attorneys,  but  to  such  section  takes 
only  as  was  prosecuted  or  defended  by  the  party  himself;  ''"d '-"^j^^i";!^  J^^ 
that  of  course  the  plaintiff's  attorney  was  entitled  to  full  costs,  fee  m  anac- 
as  though  that   act  had  not  bt-en  passed;  or  at  all  events  tl>'»t  rosecuted 
the  judi^ment  fee  taken  away,  was  merely  the  sum  of  five  shil-and  defend- 
lings,  v.'hich  added  to  th«;  two  sums  of  12a-.  6r/.  before  given, '.^[^^1.^^^. 
made  the  four  dollars;  and  that  those  two  sums  were  still  left 
to  the  attorney. 

Vol.  I.  3  S 


502  CASES  IN  THE  SUPREME  COURT 

1809.  Pr."  Curiam.  It  is  not  necessary  to  decide  whether  the 

r;;  provision  of  the  act  of  2tst  March  1806  extends  to  such  an 

Dki.a-  • 

AVARK  action  of  debt  as  this;  but  as  no  judgment  has  been  entered  in 

Ins.  Co.  tliis  case,  it  is  not  within  that  clause  of  the  act  which  has  been 

^   ^'"  read.    The  plaintiff's  attorney  is  entitled  to  the  fee  due   in 
actions  ended  after  the  first  court  and  before  judgment. 


Saturday,  Wl L  T  agaiflSt  FraNKLIN,  AssigllCC  of  Ke E L  V . 


April  1st 


Berth  ON  and  Son  against  Keely. 


?>"enin  ^'""''  TT^^  plaintiff  Wilt  levied  upon  the  property  of  Keely,  which 
aftcra  c'onsi-  -^  he  had  previously  assigned  for  the  benefit  of  his  credi- 
dcrablever-  jq^s;  and  the  proceeds  of  sale  were  paid  to  KecliPs  assignee  by 

dictisoDt<.in-  '  ■  ..-..' 

cd  against  .^,  the  sheriff.  Mr.  Franklin  conceived  himself  entitled  to  distn- 
hc  conveys    |    ^^  the  money  acrreeablv  to  the  assignment ;  Wilt  denied  the 

;iU  Ills  pro-  ,      o  -  o  ' 

perty  lo  a      validity  of  the  assignment,  and  claimed  the  money  exclusively. 

trustee  of  Ins  rj,    jete^mine  these  conflicting  pretensions,  this  action  for  mo- 
own  clioice,  °  *  ' 
for  tlie  benc-nev  had  and  received  was  agreed  to  be  entered,  and  tried  under 

,.f^      .    the  treneral  issue,  which  accordingly  was  done  before  Teates  T, 
creditors,  in  o  '  '->  J  _  '' 

equal  pro-  at  a  nisi  prius  in  February  1807,  when  the  jury  returned 
K'trustce  the  following  special  verdict. 

livcsatadis-  The  jury  find  "  that  an  action  on  the  case  was  instituted 
do'eTn(ithcar''"  the  supreme  court  of  Pennsylvania  by  the  said  Abraham 
ofthe  deed  Wilt  against  the  said  Matthias  Keely;  and  that  on  the  3d  day 
d;<vs  after-  °^  March  1804,  at  a  court  of  nisi  prius  holden,  &c.,  a  jury 
wards,  when  duly  sworn  and  affirmed  found  by  their  verdict  to  be  due  to 
No p^os"es-  the  plaintiff  Wilt,  by  the  defendant  Keely,  the  sum  of  9,062 
sion  ofthe  ti- dolls.  15  cents.  That  this  verdict  was  given  in  ^t  about  A;  o^ clock 
eiven  untir  P'  ^^'  ^f  Saturday  the  said  third  day  of  March  in  the  same 
nearly  two  year.  That  immediately  afterwards,  on  the  afternoon  of  the 
tor;  and        same  day,  by  directions  of  a  certain   Charles  P.  Heath,  the 

the  debtor  gon  in  law  of  the  said  Matthias  Keely,  and  on  his  behalf,  a  cer- 
continues  in        .       ,       ,     ^ ,  .  ,       ,  ,  ,  .  •      *u 

possession  of^^m  deed  of  bargam  and  sale-  was  drawn  by  a  scrivener  m  the 

the  furniture  said  city,  for  the  purpose  of  transferring  the  real  and  personal 

and  g-oods,  /  i       i  u 

the  next  day 
after  tlie  ex- 
ecution of  the  deed,  which  was  Sutulay,  and  part  of  Monday,  when  they  are  seized  in 
execution.  The  deed  contains  no  schedule  of  property,  and  no  limitation  of  time,  for  dis- 
tributing' the  estate.  IfeU,  that  it  is  a  valid  deed,  and  takes  effect  from  its  execution,  as 
the  assent  of  the  trustee  is  presumed;  delivery  of  title  deeds  is  unnecessary,  and  non- 
dcliver,  of  goods  is  explained. 

If  a  bargain  und  sale  recite  a  consideration  of  money,  and  the  jury  find  no  money  was 
paid,  tliis  part  of  the  verdicf  goes  for  nothin^f.  No  averment  lies  against  such  a  recital  in 
ilse  deed. 


OF  PENNSYLVANIA.  503 

estate  of  the  said  Matthias  Kcely  to  a  certain  John  Bartholo-  1809. 
mexv;  and  on  the  nig  fit  of  the  satnc  day  bctxveen  9  and  10  o"*  clock  \v7L^i^^ 
P.  M.  the  said  deed  of  bargain  and  sale  was  signed  by  the  said  v. 
Matthias  Keely  a«^  Ti'j/t",  in  the  presence  of  txvo  ivitnesses,'-'^^^^^-^^ 
and  acknowledged  before  Frederick  Wolbert,  esquire^  in  the 
same  rooni^  and  immediately  after  the  signing.  That  the  said 
John  Bartholomew  was  not  present  at  the  said  time  and 
place  of  signing^  nor  had  he  a?iy  knoxvledge  beforehand  that 
any  such  deed  ivas  to  be^  or  xvould  bc^  executed.  That  the  said 
John  Bartholomew  xvas  not  a  creditor  of  the  said  Matthias 
Keely,  That  he  resided  at  that  time  in  Chester  county,  in  this 
commonwealth,  at  the  distance  of  about  three  and  twenty  miles 
from  the  city  of  Philadelphia  aforesaid,  and  never  heard  or  knexv 
of  the  said  supposed  assignmeiit  witil  Wednesda}',  the  7th  day 
of  the  same  month  o/'March,  when  the  same  was  shewn  to  him 
at  his  dvvellinghouse  in  the  said  county  of  Chester^  by  a  certain 
George  Dmitzman,  who  was  sent  to  him  with  the  assignment 
and  a  letter  by  the  said  Keely.  That  the  said  John.,  on  receiv- 
ing the  said  letter  and  assignment,  said  to  the  said  George^ 
after  perusal  of  the  said  papers,  that  he  was  a  friend  of  Mr. 
Keely^s  family,  and  was  willing  to  oblige  him  in  this  respect: 
that  he  was  very  xvilling  to  serve,  but  that  his  illness  would 
prevent  him  from  coming  to  the  city."  The  jury  further  find 
"  that  no  money  xvas  paid  to  the  5rtzW  Keely  by  the  said  Bartho- 
lomew on  the  said  3d  of  March,  or  at  am/  time  afterxvards;  and 
that  no  possession  of  the  goods  or  lands,  books  or  xvritings  of  the 
said  Matthias  Kccly  xvas  delivered  by  him  to  the  said  John,  on 
the  said  2d  day  of  March,  or  at  any  time  afterxvards.  That  the 
family  of  the  said  Matthias  continued  to  reside  in  his  said 
dwellinghouse  after  the  said  supposed  assignment;  and  that 
the  said  Matthias  continued  in  possession  of  his  goods  and  furni- 
ture until  Monday  the  5th  day  of  Murch  aforesaid,  xuhen  the 
sheriff  of  the  city  and  county  (^/Thiladelpliia  levied  on  the  goods 
and  furniture  of  the  said  Matthias,  at  the  suit  of  a  certain  Peter 
lirrthon  and  son,  and  took  the  same  into  custodw"  The  jury 
further  find  "  that  on  Monday  the  5th  day  of  March  in  the 
same  year,  being  the  first  day  of  the  March  term  of  the  said 
supreme  court,  judgment  was  entered  in  the  same  court,  on 
the  said  verdict,  against  the  said  Kcely.  That  on  the  7th  day 
of  the  same  March,  the  same  Matthias  Keely  was  arrested  and 
confined  for  debt  in  the  prison  of  the  city  and  county  of  Phi- 


504  CASES  IN  THE  SUPREME  COURT 

1809.      ladelphia.  That  on  the  10th  day  of  March  in  the  same  year, 
rr:  the  said  John  Bartholomew  assigned  the  premises  mentioned 

^  in  the  said  supposed  conveyance  of  the  3d  of  iMarch  to  a  cer- 

t'RANKLiN.tain  Thomas  AlliboJie  ?ix\6.  Caleb  North^who  afterwards  assigned 
to  the  said  Walter  Franklin^  the  defendant.  That  the  said  Caleb 
North  and  Thomas  Allibone  were  authorized  by  a  meeting  of 
the  creditors  of  the  said  Matthias  to  take  the  said  assignment 
from  the  said  John."  The  jury  further  find  "  that  two  messuages 
of  the  said  Matthias  Kcehj^  in  the  city  of  Philadelphia^  were  le- 
vied upon  by  the  sheriff,  under  the  execution  of  the  said  Abra- 
ham; but  that  the  title  deeds  of  the  said  two  messuages  or  of  any 
other  real  estate  of  the  said  Mixtthi'ds  Keely,  included  in  the  first 
assignment  aforesaid^  xvere  not  delivered  by  him^  or  his  order ^  to 
the  said  ]ohxi  Bartholomew  at  any  time.,  but  remained  iii  his  own 
house,  where  his  famih'  continued  to  reside,  and  were  by  him 
brought  into  the  court  of  common  pleas  on  the  26th  April 
1804,  and  surrendered.  And  that  the  said  Matthias  Keely, 
or  a  certain  Charles  P.  Heath,  his  son  in  law,  had  in  his  or  their 
possession  the  said  supposed  assignment  of  the  id  of  March 
until  the  evening  of  the  6th  of  March,  when  it  was  put  into  the 
hands  of  the  said  George  Dantzmaii,  in  Philadelphia,  to  be  de- 
livered to  the  said  John,  in  Chester  county.  And  that  the  said 
Matthias  Keely  on  the  8th  day  of  March,  in  the  same  year, 
petitioned  the  court  of  common  pleas  of  Philadelphia  county, 
on  which  such  proceedings  were  had  \_pr out  proceedings'].  If 
upon  the  whole  matter  the  law  be  in  favour  of  the  plaintiff, 
then  the  jury  find  for  the  plaintiff,  and  assess  damages  to  2,037 
dollars  58  cents,  and  6  cents  costs;  if  the  law  be  in  favour  of 
the  defendant,  then  they  find  for  the  defendant." 

The  case  of  Berthon  and  son  against  Keely,  it  was  agreed  by 
counsel  should  be  decided  on  the  same  argument  with  Wilt 
and  Franklin;  and  that  the  preceduig  special  verdict  should  be 
considered  as  existing  in  the  case,  as  far  as  it  applied,  with  this 
additional  fact,  that  the  sheriff  under  the  seizure  found  by  the 
verdict,  proceeded  to  sell  the  goods  so  seized,  and  had  paid  the 
proceeds  into  this  court.  The  question  in  this  case  was  there- 
fore, whether  Berthon  and  son  should  not  be  at  liberty  to  take 
the  money  out  of  court. 

Both  cases  turned  upon  the  validity  and  relation  of  the  deed 
of  3d  March  1804;  by  which,  Keely  and  wife,  in  consideration 


OF  PENNSYLVANIA.  505 

■jf  one  dollar^  bsirgajned  and  sold  his  whole  real  and  personal  1809. 
estate  to  Bartholomew,  in  trust  that  he  should  "  forthwith  take  ~*T;  " 
"  possession  and  seisin  ot  the  premises,  and  within  such  con-  ^^ 
"  venient  time  as  to  him  should  seem  meet,  by  public  or  private  Frankliw. 
"  sale  for  the  best  price  that  could  be  procured,  convert  all  and 
"  singular  the  estate  real,  personal,  and  mixed,  into  money, 
"  and  as  soon  as  possible  collect  all  and  singular  the  debts  and 
"  sums  of  money  above  assigned,  and  after  deducting  the  costs 
"  and  charges  of  the  trust,  should  pay^ind  apply  all  the  moneys 
"  arising  therefrom"  to  and  among  all  the  creditors  q/'Keely,  in 
equal  proportions;  the  surplus,  if  any,  to  be  returned  to  him. 
The  deed  also  gave  power  to  Bartholomew  to  convey  part  or 
the  whole  of  the  property  to  one  or  more  trustees  under  the  con- 
trol and  direction  of  Keely's  creditors^  upon  the  same  trusts  as 
were  mentioned  in  the  original  assignment.  And  under  this  di- 
rection and  control,  Bartholomexv,  on  the  10th  March  1804,  con- 
veyed the  whole  to  North  and  AUibone^  and  they  on  the  13th 
Ju7ie  1804  to  Mr.  Franklin^  the  defendant;  but  the  deed  did 
not  contain  or  refer  to  any  schedule  or  list  of  the  property  and 
debts  assigned,  or  of  the  debtors  and  creditors.  It  was  recorded 
on  the  2%\.\\  August  1804. 

The  cause  was  argued  at  March  term  1808. 

Phillips  and  M.  Levy  for  Wilt.  Tod^  for  Berthon  and  son. 
Upon  this  special  verdict  we  make  two  points.  1.  Under  the 
facts  stated  in  the  verdict,  the  deed  of  the  3d  March  1804  is 
fraudulent  and  void.  2.  Supposing  it  to  be  valid,  it  had  no 
operation  until  the  assent  of  the  trustee,  on  the  7th  of  March^ 
and  therefore  does  not  cut  out  our  intervening  judgment,  and 
execution. 

1.  The  deed  is  fraudulent  and  void,  because  it  was  intended 
to  defeat  the  verdict  which  Wilt  had  obtained  on  the  same 
day, — because  it  was  not  attended  l)y  delivery  of  possession, — 
because  the  trustee  was  not  a  creditor,  and  was  chosen  by  the 
debtor, — because  there  was  no  money  paid  by  Harthol'jmeio 
to  Kcely^ — because  there  is  no  schedule  ol  the  propertj', — and 
because  no  time  is  limited  for  the  execution  of  the  trust. 

To  render  a  deed  fraudulent  by  the  stat.  13  Eliz.  c.  5.  the 
mala  mens  need  not  appear  from  positive  proof.  If  its  necessa- 
ry effect  is  to  delay,  hinder,  or  defraud  creditors  of  their  just 
and  lawful  units  and  debts,  the  law  pronounces  the  deed  to  be 


506  CASES  IN  THE  SUPREME  COURT 

1809.      traudulcnt,  from  the  mischief  that  results,  and  does  not  ask  for 
77,      ^     direct  proof  of  covinous  intention.  The  facts  of  this  case  are 
7-.         short.   On  the  night  of  the  same  day  on  which   JVilt  obtained 
Franklin,  his  verdict,  at  an  unusual  hour,  and  without  consulting  a  cre- 
ditor, Keehf  conveys  away  all  his  property  upon  earth.   The 
judgment  was  to  become  absolute  in  four  days;  and  therefore 
the  Jfrst  objection  to  the  deed  is,  that  it  was  to  delay,  hinder, 
and  defraud  IVilt  of  the  just  benefit  which  the  law  was  about 
the  next  moment  to  conA^r  upon  his  vigilance,  in  the  lan- 
guage of  the  statute,  *'  to  the  let  and   hindrance  of  the  due 
"  course  and  execution  of  law  and  justice."  The  manifest  view 
was  to  defeat  this  creditor;  and  therefore  even  if  it  had  been 
for  a  valuable  consideration,  given  by  a  person  conusant  of 
the  facts,  the  law  would  overthrow  it,  according  to  the  case 
put  in  Cadogan  v.  Ktnnett.  {a) 

No  possession  of  the  property  was  delivered  to  the  grantee. 
This  is  our  second  objection.  There  is  no  circumstance  that 
goes  more  directly  to  the  point  of  fraud,  than  the  grantor's 
continuing  in  possession  of  his  property,  after  he  has  assigned 
it  by  an  absolute  deed.  Even  where  it  is  made  for  a  valuable 
consideration,  it  is  bad;  as  in  Txvyne*s  case^  (Jb)  where  the  con- 
veyance was  in  satisfaction  of  a  debt  due  to  the  grantee;  and  in 
Hungerfordv,  Earle^  (c)  where  the  grantor  conveyed  to  trus- 
tees to  pay  debts,  and  to  raise  portions.  It  is  not  merely  evi- 
dence; it  is  a  circumstance  per  sc,  which,  in  point  of  law,  ren- 
ders the  deed  fraudulent.  In  Edrvards  v.  Harhen  (d)  it  is 
stated  by  Bxiilcr  J.  that  upon  a  consultation  with  all  the  judges, 
in  the  c:is<  of  liamfurd  \ .  Baron.,  they  were  unanimously  of 
opinion,  that  unless  possession  accompanies  and  follows  the 
deed,  it  is  fraudulent  and  void;  and  that  where  a  bill  of  sale  on 
the  face  of  it  is  absolute,  and  to  take  place  immediately,  pos- 
session must  be  immediattly  delivered,  or  the  deed  is  fraudu- 
lent. The  principiil  case  was  argued  by  the  counsel  of  the 
grantee,  as  being  one  in  which  the  want  of  possession  was 
only  evidence  of  fraud,  and  that  it  was  not  such  a  circumstance, 
per  6r,  as  made  the  transaction  fraudulent;  but  the  answer  of 
the  court  was,  that  that  was  the  point  they  had  considered; 
and  they  were  all  of  opinion,  that  if  there  was  nothing  but  the 

(a)  Cov-'p.  434.  (c)  2  Vern.  261. 

{b)  3  Co.  80.  frO  2D.&-E.  587 


OF  PENNSYLVANIA.  507 

absolute  conveyance  without  the  possession^  that  in  point  of  law      1809. 
was  fraudulent.   It  is  also  to  be  remarked  in  our  case,  that     ^y 
there  was  no  counterpart  of  the  deed  of  the  3d.  of  Marchy  and         ^, 
that  the  original  was  in  the  custody  of  Keely  until  the  evening  pRANKiiif. 
of  the  6th;  during  which  time  he  might  have  destroyed  it. 
The  title  deeds  also  were  in  his  hands  until  the  26th  April. 
These  facts  bring  us  within  the  principle  of  Wilson  v.  Day^  (a) 
and  also  within  that  of  Tarhack  v.  Marhury,  {I)) 

The  third  objection  is,  that  the  trustee  was  not  a  creditor, 
and  was  chosen  by  the  debtor.  The  impropriety  of  allowing  a 
debtor,  involved  in  inextricable  embarrassment,  and  pursued  to 
the  verge  of  execution,  suddenly  to  withdraw  his  property,  and 
to  place  it  in  the  hands  of  a  friend,  who  can  feel  no  common 
interest  with  the  creditors,  and  must  entertain  a  bias  to  the  ac- 
commodation of  the  debtor,  is  not  to  be  overlooked.  It  not  only 
shews  the  fraudulent  intent,  but  it  contributes  to  the  fraudulent 
effect.  It  turns  round  the  creditors  to  a  person  against  whom 
they  have  little  or  no  remedy,  and  who,  in  all  cases  of  collision 
between  them  and  the  debtor,  will  act  in  the  spirit  of  his  ap- 
pointment, by  baffling  them  with  every  impediment  that  the 
debtor's  interest  may  suggest.  Accordingly  in  Burdv.  Fitzsim- 
?nons,  (c)  it  was  mainly  relied  upon  by  the  judges,  who  decided 
against  the  deed;  and  in  Alderson  v.  Tempk\  {cl^  it  was  the 
opinion  of  lord  Mansfield  that  it  would  be  an  act  of  bankruptcy 
in  a  debtor,  to  convey  his  estate  to  trustees  of  his  own  choosing. 
If  so,  it  jniist  be  bad  at  common  law,  as  it  must  proceed  upon 
the  giound  of  fraud. 

Another  objection  is  that  no  money  was  paid  by  the  grantee; 
there  is  therefore  no  consideration  to  raise  a  use.  2  Bl.  Comm. 
330,  Monninirton  v.  Williams  (e),  Stream  v.  Seyer  (/)■,  Sarg-cnt 
v.  Reed  (if).  The  consideration  is  of  the  essence  of  this  kind  of 
conveyance.  2  Inst.  671.  It  is  true,  after  verdict,  a  considera- 
tion will  be  presumed  to  have  been  proved;  but  here  the  re- 
ceipt of  a  dollar  is  negatived  l)y  the  special  verdict,  and  the 
presumption  is  rebutted. 

Tile  fifth  defect  of  this  assignment  is  the  want  of  a  schedule* 
Courts  of  justice,  keeping  in  view  the  principles  of  the  common 

(a)  2  /iurr.  830  (.d)  4  Burr.  2240.  (g)  2  Stra.  1229. 

{l>)  2  y-rrn.  510  (e)  1  Tr/i// .  108 

(()  4  Dall.  77  (/)  1  LJ.  Rny.  Ill 


508  CASES  IN  THE  SUPREME  COURT 

1809.      law,  as  well  as  the  statute  1 3  Eliz.,  will  not  suffer  themselves  to 
Ty  be  deceived  by  the  honest  appearance  of  a  deed  of  trust,  if  it  is 

■,,.  wanting  in  those  provisions  which  are  essential  to  the  execu- 
FRANKLiN.tion  of  it,  and  which  are  necessary  to  render  the  trustee  and 
cestui  que  trust  independent  of  the  QV^ntor.  When  real  estate 
is  conveyed,  the  trustee  should  know  its  situation  and  amount, 
either  from  the  deed,  or  from  something  to  which  it  refers; 
a  fortiori  where  debts  are  assigned,  since  without  some  speci- 
fication, the  pursuit  of  them  is  hopeless.  This  was  a  circum- 
stance relied  upon  in  Burd  v.  Fitzsimmoiis^  and  with  great 
propriety. 

Finally,  no  time  is  limited  for  the  execution  of  the  trust.  If 
such  a  conveyance  as  this  can  be  supported,  it  must  be  because 
it  is  for  the  benefit  of  creditors.  It  can  never  be  for  their  bene- 
fit, that  the  property  of  the  debtor,  in  whose  hands  it  is  subject 
to  execution  after  a  limited  delay,  should  be  given  to  a  trustee 
to  apply  it  for  their  use,  only  when  he  shall  think  proper.  It  is 
substituting,  for  the  delay  of  a  few  months,  a  delay  without 
limit. 

2.  But  supposing  the  deed  to  be  valid,  it  did  not  take  effect 
until  the  7th  of  March^  when  the  trustee  assented.  This  assent 
was  clearly  necessary  to  give  operation  to  the  deed.  But  it 
cannot  carry  the  deed  back  by  relation.  Relations  are  not  to  do 
wrong  to  strangers;  they  are  fictions  in  law,  which  are  always 
to  be  accompanied  by  equity.  Nor  is  such  assent  to  be  pre- 
sumed. Where  a  deed  is  for  the  benefit  of  the  grantee,  no 
doubt  the  presumption  exists;  it  is  highly  reasonable.  But 
where  the  deed  imposes  an  unprofitable  dutv,  the  presumption 
ought  to  be  the  other  way.  The  case  is  all  the  stronger  for  us, 
because  the  trustee  is  not  a  creditor;  he  is  here  to  perform  a 
duty  without  reward,  and  he  covenants  for  the  performance  of 
the  duty  by  accepting  the  trust.  There  is  no  case  in  whicl> 
assent  to  such  a  deed  has  been  presumed.  The  lime  of  delivery 
therefore,  according  to  lord  Ellenborough^  in  Hall  v.  Case- 
nove^  (a)  is  the  important  time  when  it  takes  effect  as  a  deed. 

Rawle  and  Ingersoll  for  the  defendant.   It  is  the  policy  oP 
all  civilized  countries  to  favour  an  equal  distribution  among 

(fi)  4  East  481. 


OF  PENNSYLVANIA.  SOfy 

the  creditors  of  an  insolvent  debtor.  The  embarrassment  to      1809. 
commerce,  and  the  ruin  to  individuals,  which   spring  from      \v77t~^ 
large  preferences,  either  given  to,  or  compelled  by,  a  single         v. 
creditor  to  the  exclusion  of  the  rest,  have  every  where  led  toFRA:sKLiN. 
i>ankrupt  and  insolvent  laws;  vmtil  at  last  we  may  say  that  ge- 
neral assignments  are  favourites  of  the  law,  and  will  be  sup- 
ported by  everv  reasonable  intendment.   If  then  the  deed  in 
question  is  bad,  it  is  either  because  it  is  fraudulent  upon  mo- 
ral principles,  or  is  contrary  to  the  provisions  ot  the  statute. 
It  surelv  is  not  against  the  general  policy  of  the  law. 

Fraud,  upon  moral  principles,  is  not  found  by  the  verdict. 
It  is  not  to  be  presumed;  and  in  fact  it  is  negatived  by  all 
the  proceedings  of  the  debtor.  His  object  was  to  convey  all 
his  propertv,  for  the  equal  benefit  oi'all  his  creditors,  without 
any  trust  or  reservation  for  himself,  and  without  stipulating  for 
a  release.  His  creditors  were  to  control  the  trust,  by  appoint- 
ing subsequent  trustees;  and  they  might  order  the  distribution 
in  the  manner  and  time  they  pleased.  In  what  respect  does  this 
differ  from  an  assignment  under  the  insolvent  laws,  except 
that  the  debtor  remains  exposed  to  execution,  and  has  not 
claimed  the  protection  which  the  law  would  have  granted  him. 
It  is  not  contrar)'  to  the  statute.  To  make  a  deed  fraudulent 
within  the  13  Eliz.  there  must  be  an  actual  mala  mens^  which 
cannot  be  presumed,  but  must  be  proved,  and  found  by  the  jury; 
as  it  was  resolved  in  the  Chancellor  of  Oxford'' a  case,  (a)  The 
circumstance,  of  its  being  voluntary  and  without  consulting  the 
creditors,  is  of  no  consequence;  for  there  are  many  cases  and 
opinions,  that  a  deed  of  trust  may  be  voluntary,  and  yet  not 
fraudulent;  as  in  lord  Tcynliam  v.  Mullens  (b)  and  in  J^ussel  v. 
Hammond,  (r)  Lord  Mansfield,  in  delivering  his  opinion  iu 
Cadogan  v.  Kennett,,  (d)  sa)s  that  such  a  construction  of  the 
statute  is  not  to  be  made  in  support  of  creditors,  as  will  make 
third  persons  sufferers;  and  therefore  the  "statute  doesnotmili- 
*'  tate  against  anv  transaction  bona  fide,  and  where  there  is  no 
"  /m«^i/j(-/?/'>/i'>///v/?/r/."  Whether  voluntary  or  otherwise,  there- 
lore,  is  not  the  (juestion;  l)Ut  whether  it  is  a  trick  or  contrivance 
to  defeat  creditors.  The  statute  goes  wholly  upon  the  ground  of 

(u)  \0Co.5Q.  (0  1  Ati.  15. 

(';)  1  M'J.  ny.  (d)  Covp-  431. 

V(5L.  i.  3  T 


510  CASKS  IN  THE  SUPREME  COURT 

1809.  intended (viiml.  It  speaks,  in  the  preamble,  of  feigned,  covinous, 
YvTiT  ^"^  fraudulent  conveyviv\ccs,devi'ieda/id  contrived  of  inalioc.  The 
T.  parties  are  made  criminal,  and  are  punishable  by  information; 
lRANKi.iN.;ind  tlic  6th  scction  expressly  protects  such  deeds  as  are  made 
upon  a  good  consideration,  and  /jona  fide.  It  may  be  upon  a 
good  consideration,  and  yet  fraudulent,  as  in  Twi/ne\<i  case; 
which  was  a  criminal  prosecution,  and  where  the  deed  was 
evidently  designed  to  cheat  the  other  creditors  of  Pierce;  but 
if  it  is  done  honafide^  it  is  impossible  that  there  can  be  fraud 
within  the  statute.  The  cases  from  the  English  books,  where 
an  honest  intention  was  held  not  to  save  the  deed,  are  cases 
within  the  statutes  of  bankrupt;  the  deeds  were  deemed  to  be 
frauds  upon  those  statutes.  But  they  could  not  be  bad  at  com- 
mon law,  or  by  the  stat.  13  Eliz.;  to  come  within  which,  the 
feoffment  must  be  devised  of  malice,  fraud  or  the  like,  3Ieux 
qui  tarn  v.  Hoxvell.  (r/) 

But  it  is  said  this  deed  was  intended  to  defeat  and  delay  the 
creditor  who  was  about  to  obtain  an  execution;  and  that  this  is 
fraudulent.  We  deny  the  position.  The  object  was  to  prevent 
one  creditor  from  grasping  every  thing  to  the  exclusion  of  the 
rest;  and  this  was  perfectly  honest,  and  is  supported  by  manv 
authorities.  Surely  on  the  afternoon  of  6'a^?<r^a«/,  Keehj  might 
have  given  property  to  one  creditor  in  satisfaction  of  his  debt, 
bankrupt  laws  out  of  the  case;  a  fortiori  might  he  give  it  for  the 
benefit  of  all  his  creditors.  Nunn  v.  Wilamore.  {h)  The  ap- 
proaching judgment  was  nothing;  and  to  this,  and  indeed  to 
all  the  objections  against  the  intent  and  effect  of  the  deed,  the 
cases  of  Holbird  v.  Anderson^  (c)  and  Meux  v.  Hoiuell^  are  in 
point.  The  delay  is  honestly  and  lawfully  produced  to  obtain 
an  equal  distribution  among  all  who  are  entitled. 

Then  as  to  the  particular  defects  which  are  relied  upon  as 
badges  of  fraud: 

No  posscsaion  was  delivered.  So  far  as  it  respects  the  title 
deeds,  none  was  nccessar}'.  Our  recording  acts  have  made  the 
possession  of  the  deeds,  immaterial.  And  Keely  con\d  not  have 
destroyed  the  principal  deed,  since  it  was  well  known  by  its  ex- 
ecution before  witnesses,  and  by  its  acknowledgment  before  a 
Judge,  who  took  the  privy  examination  of  the  wife.  As  it  re- 

\  [a,  'i  L::-.'.  1.  fi;  fi  Ji  c'-  A'.  52^.  •'■     .i  D.  tt £.  235. 


OF  PENNSYLVANIA,  511 

spccts  personal  property,  it  is  a  mere  evidence  of  iVaiid  which      1809. 
may  be  rebutted  by  circumstances;  and  so  are  the  cases  cited.      ^yTZr 
In  Edwards  v.  Harbcn  the  deed  called  for  immediate  posses-         ^,. 
sion,  and  the  grantor  verbally  stipulated  for  a  possession  of  Tranklin. 
fourteen   days.    What  the  court   say  is  therefore  with  rela- 
tion to  such  a  contract,  and  they  thought  proper  to  treat  it 
as  full  evidence  of  fraud;  but  it  docs  not  resemble  the  present 
case.  Thev  held  immediate  possession  to  be  necessary;  but  this 
floes   not  exclude  all  mesne  acts;  it  implies  convenient  time 
without  delay,  as  in  Rex  v.  Francis;  (a)  and  there  was  clear- 
ly no  delay  here.  The  deed  was  executed  on  Saturday  night; 
Stmdai-f  was  not  a  day  for  liusineas;  and  on  Mondan^  Berthoii's 
own  execution  made  a  delivery  impossible.  There  was  no  sti- 
pulation that  the  grantor  should  remain  possessed;  and  the  ob- 
stacle to  delivery  was  the  conduct  of  one  of  the  parties  who 
now  set  up  the  objection. 

The  next  is  the  appointment  of  his  own  trustee,  «ot  a 
creditor.  This  also  is  a  mere  circumstance.  Cases  may  occur 
in  which  such  an  appointment  would  be  almost  conclusive 
evidence  of  fraud.  But  here  the  very  deed  provides  for  an 
appointment  by  the  creditors;  and  therefore  the  argument  of 
possible  fraud  and  mismanagement  fails.  Besides,  the  trustee 
M'ould  have  been  amenable  to  the  creditors,  without  this  pro- 
vision, by  our  act  of  assembly.   1  St.  Laius  690. 

Another  Is,  that  no  money  was  paid  by  the  trustee.  The 
deed  expresses,  first,  the  consideration  of  debts;  which  is  a 
special  and  a  valual)le  consideration.  Nvgent  v.  Gijford.  (b) 
Secondlv,  the  receipt  of  one  dollar,  though  the  jury  negative 
it.  It  is  however  clearly  settled,  that  if  the  deed  make  men- 
tion of  monc\-  paid,  and  in  truili  no  money  is  paid,  yet  the 
Ijargain  and  sale  is  good;  and  no  averment  will  lie  against  this 
which  is  expressly  affirmed  by  the  deed.  Shej).  Touch.  223. 

Anollier  is,  the  want  of  a  schedule.  There  is  no  case  in 
which  this  has  b»:en  a  substantive  objection  to  the  deed.  Here 
the  deed  was  an  authority  to  demand  the  books,  whicli  would 
be  the  best  sche  lule,  since  every  thing  was  conveyed;  and  al- 
though tlie  omission  of  the  document  was  relied  on  in  Bard 
v.  J'itzsimmoJis^  yet  it  is  to  be  observed,  that  the  reasons  of  the 


512  CASES  IN  THE  SUPREME  COURT 

1809.      judges  for  overthrowing  that  assignment  were  different.  The 
court  was  divided  three  to  two  upon  the  main  question;  and 


^,  they   took    all  the    minor  objections   in  connexion   with  the 

Fhanklin.  strong  and  peculiar  feature  in  that  deed — a  resulting  trust  to 
the  debtor  before  the  creditors  were  paid. 

It  is  also  urged  that  no  time  is  limited  for  the  distribution. 
The  act  of  assembly  furnishes  a  remedy  against  improper 
delay.  There  is  moreover  no  limitation  of  time  in  the  assign- 
ments under  the  insolvent  laws;  and  all  that  the  debtor  could 
do,  he  has  done,  by  requiring  the  distribution  to  be  naade  as 
soon  as  possible. 

The  only  remaining  point  is  the  relation  of  the  deed.  It  is 
conceded  that  the  acceptance  of  the  grantee  is  to  be  presumed, 
when  the  deed  is  for  his  i>cnefit.  This  deed,  it  is  true,  is 
neither  a  gift  nor  a  reward;  but  it  is  the  creation  of  a  trust  in 
the  grantee,  which  it  is  merely  an  act  of  justice,  and  a  per- 
formance of  the  social  duty  each  man  owes  to  the  community, 
to  accept.  The  law  will  therefore  presume  an  assent,  until  a 
disagreement  is  shewn.  It  is  not  a  question,  whether  the  deed 
relates  back  so  as  to  cut  out  mesne  acts,  but  whether  the 
estate  was  not  out  of  the  grantor,  eo  instantly  the  execution 
was  complete;  and  to  this  point,  the  case  of  Thompsons, Leach 
is  full,  {a) 

Rcphj.  The  case  of  Thompson  v.  Leach  is  of  very  doubtful 
authority.  The  opinion  of  Ventris^  upon  which  the  defendant's 
counsel  rely,  was  opposed  by  three  judges  in  the  common 
pleas,  whose  judgment  was  affirmed  by  the  king's  bench;  and 
although  this  judgment  was  reversed  by  the  house  of  lords, 
there  were  ten  judges  against  the  reversal.  But  give  it  its 
full  weight:  The  whole  argument  of  Ventris  is  upon  convey- 
ances at  common  law;  and  he  expressly  avoids  saying  any 
thing  of  conveyances  that  work  by  the  statute  of  uses.  2  Ventr. 
201.  Even  such  conveyances  at  common  law,  as  require 
some  reciprocal  act  from  the  grantee,  he  excepts  out  of  those 
to  which  his  assent  is  implied,  as  exchanges.  And  in  the  pre- 
sent case,  as  the  trustee  covenants  for  the  performance  of  the 
trust  by  accepting  it,  it  is  a  reciprocal  act,  not  formal,  but 

(a)  2  Vaitr.  198.  1  Shomi.ZQQ-  S.  C 


OF  PENNSYLVANIA.  513 


substantial;  and  therefore  comes  fully  within  the  exception  of     1809. 


Ventris,  Wilt 

Cur.  adv.  vult.  ^_ 

Franklik. 
Upon  this  day  the  judges  delivered  their  opinions. 

TiLGHMAN  C.  J.  These  causes  come  before  the  court  on  a 
special  verdict,  found  in  the  action  in  which  Wilt  is  the  plaintiff. 
In  the  action  by  Berthon  and  son^  it  is  agreed,  that  it  shall  be 
decided  on  the  facts  found  in  the  verdict  in  Wilt's  suit. 

Two  points  were  made  by  the  counsel  for  the  plaintiff.  l.That 
under  the  circumstances  stated  in  the  verdict,  the  deed  from 
Matt/lias  Keelif  to  yol^n  Bartholomeru  is  to  be  considered  as 
fraudulent  and  void.  2.  That  supposing  it  to  be  good,  it  had 
no  operation  till  the  7th  of  March^  when  it  was  first  made 
known  to  Bartholomeiv.,  and  received  his  assent. 

In  support  of  the  first  point,  it  was  contended  that  the  deed 
was  void  bv  the  stat.  13  El'iz.  c.  5.,  and  by  the  principles  of 
the  common  law;  because  it  was  made  with  an  intent  to  defeat 
the  action  of  IFilt,  who  had  obtained  a  verdict  against  AW// 
the  same  dav  the  deed  was  executed;  because  it  was  not  at- 
tended with  delivery  of  possession  of  the  property  conveyed; 
because  it  vested  the  management  of  Keely^s  whole  estate  in  u 
trustee  of  his  own  choosing;  because  there  was  no  schedule  of 
the  property;  and  because  no  money  was  paid  hy  Bartholomnv 
to  Keeltf. 

I  will  consider  this  subject  under  two  points  of  view,  which 
will  include  the  different  positions  taken  by  the  plaintiff's 
counsel. 

1.  What  was  the  intent  of  the  parties? 

2.  In  what  manner  has  their  intent  been  carried  into  effect? 
1.  As  to  Bartholomew  the  grantee,  there  is  no  intimation  of 

his  having  entered  into  any  improper  collusion  with  Kccly.  He 
knew  nothing  of  the  deed  till  after  its  execution;  and  it  does 
not  appear  that  he  was  any  way  interested  in  it.  The  manifest 
intent  of  Kcelij  was  to  ])rcvent  Wilt  from  obtaining  an)'  prefe- 
rence by  his  judgment,  and  to  put  all  his  creditors,  without 
exception,  on  an  equal  footing.  There  appears  to  be  nothing 
immoral  or  unfair  in  such  intent.  On  the  contrary,  it  is  the 
object  of  well  regulated  societies,  where  commerce  flourishes, 
to  obtain  an  equal  division  of  th«  property  of  insolvent  traders. 


514  CASES'IN  THE  SUPREME  COURT 

1809.      The  statute  of  13  Eliz.  c.  5.  (the  provisions  of  which  go  no 
^Y'lLT      fi^irthcr  than  the  common  law  as  7iow  understood)  never  had 
T.         it  in  contemplation  to  invalidate  a  fair  transaction.    It  was 
Franklin,  made  to  avoid  fraudulent  conveyances,  intended  for  the  pur- 
pose of  defeating,  hindering,  or  delaying  creditors  of  their 
just  dchts.  The  parties  to  such  convejances  were  considered 
as  criminal,  and  subject  to  a  penalty,  to  be  recovered  bv  action 
of  debt  or  information.   The  statute  is  declared  to  be  made  for 
the   purpose  of  avoiding  "  feigned,  covinous,  and  fraudulent 
"  conveyances,  bonds,  suits,  judgments,  and  executions,  which 
"  were  devised  and  contrived  of  malice,  to  the  end,  purpose, 
*'  and  intent,  to  deloif^  hinder^  or  defraud  creditors  and  otheis 
"  of  their  just  and  lawful  actions,  suits,  debts,"  &c.  &c.  There 
is  nothing  in  the  statute  to  hinder  a  man  from  giving  :a  prefer- 
ence to  any  creditor  he  pleases,  before  or  even  after  an  action 
brought  against  him.   It  was  never  supposed  that  it  would  pre- 
vent an  executor  from  preferring  one  creditor  to  any  other  ol 
equal  degree,  by  a  voluntary  confession  of  judgment,  although 
the  creditor,  who  brought  the  first  suit,  was  thus  entirely  defeat- 
ed. An  executor  indeed  could  not  give  a  preference  to  a  debt 
of  an  inferior  nature;  but  that  was  because  he  would  thereby 
be  guilty  of  a  devastavit:  a  reason  which  does  not  apply  to  the 
case  of  debtor  and  creditor  who  are  both  living.  It  was  express- 
ly decided  in   Hoibird  v.  Anderson^   5  D.   ^  E.  235.,  that  a 
debtor,  being  sued  to  judg-rne7it  by  one  of  his  creditors,  might, 
before  the   time  when  execution  could  be  taken  out,  prefer 
another    creditor    by   a    Aoluntary    confession   of  judgment, 
by  virtue  of  which  an  execution  was  immediately  sued  out, 
and  levied  on  the  goods  of  the  debtor.   In  Nu7in  zwd  Ladbrook 
v.  Wilsmorc,  8  D.  £9"  E.  529,  530.,  lord  Kenyan  declares  his 
opinion,  that,  "  putting  the  bankrupt  laws  out  of  the  case,  a 
'*  debtor  may  assign  all  his  effects  for  the  benefit  of  particular 
"  creditors."  Now,  if  preferences  of  this  kind  are  lawful,  much 
more  so  is  an  act  which  gives  a  preference  to  no  creditor,  but 
prevents  any  one  from  obtaining  a  preference^  and  puts  all  on 
an  equal  footing.  It  may  be  objected,  that  this  case  comes  with- 
in the  words  of  the  statute,  because  Wilt  has  been  hindered^ 
delayed^  and  in  part  defeated,  by  this  deed.  It  is  true  he  has 
been  delayed  and  partly  defeated,  but  not  in  a  fraudulent  man- 
ner. We  must  give  the  statute  a  reasonable  construction.   Wilt 
v.ould  have  been  delayed  and  partly  defeated,  if,  immediately 


OF  PENNSYLVANIA.  515 

after  the  commencement  of  his  suit,  Keely  had,  with  the  con-      1809. 
sent  of  all  his  other  creditors,  executed  a  deed  to  trustees  of      ,,,  ,._, 
the  creditors'  own  choice,  for  the  purpose  of  disposing  of  his         ^,^ 
estate,  and  dividing  the  proceeds  equally  among  them.   But  IFrvnkhx. 
imagine  no  one  would  contend  that  in  such  case  the  convey- 
ance was  not  good. 

For  the  reasons  which  I  have  given,  and  many  others  which 
might  be  given,  I  conclude  that  the  intent  of  Kecly^  so  far  as 
it  appears  by  the  verdict,  was  fair  and  lawful. 

2.  Let  us  next  consider  the  tneans  by  which  he  carried  his 
purpose  into  efllct.  He  executed  a  conveyance  of  all  his  pro- 
perty^ without  specifying  it,  to  a  trustee  of  his  own  choosing; 
with  power  to  the  said  trustee  to  convey  part,  or  the  whole  of 
the  said  property  to  another  trustee  or  trustees,  under  the  con- 
trol and  direction  of  his  creditors.  Keeiy  and  his  wife  imme- 
diately acknowledged  the  deed  before  a  judge  of  the  court  of 
common  pleas  of  PhUadelph'ia  county.  This  was  on  Saturday 
night.  On  Mondaif  following  he  confessed  judgment  to  Bcrthon 
and  .9o«,  who  immediately  took  out  a  //.  fa.  and  levied  on  his 
goods,  still  remaining  in  his  possession.  On  Tuesday  night  the 
deed  was  given  by  Keely  to  a  messenger,  to  be  carried  next 
morning  to  liartlwlomew^  who  lived  twenty-three  miles  off; 
and  on  Wednesday  it  was  delivered  to  Bartholomerv^  who  then 
for  the  first  time  was  made  acquainted  with  it,  and  who  con- 
sented to  act  as  trustee. 

By  the  execution  of  the  deed,  Keely  irrevocably  parted  with 
all  power  over  his  estate.  And  it  is  to  be  remarked,  that  the 
transaction  was  not  secret.  The  judge  who  took  the  acknow- 
ledgment must  have  been  privy  to  the  contents  of  the  deed, 
because  the  law  required  him  to  make  the  contents  known  to 
Mrs.  Keely  when  he  took  her  acknowledgment. 

As  the  counsel  lor  the  plaintiff  relied  a  good  deal  on  the 
case  oi  Burd  v.  l-"ttzsimmojis  Sec,  decided  in  the  high  court  of 
errors  and  appeals  in  this  state,  in  support  of  some  of  their  ob- 
jections, under  the  head  which  I  am  now  considering,  I  think 
it  proj)cr  to  mention  that  xXxa  pointy  dceidcd  there,  is  very  litth 
to  the  j)resent  purpose,  because  the  two  cases  arc  csscntiallv 
different.  In  that  case  a  time  was  fixed,  within  which  the  cre- 
ditors were  required  to  give  their  assent  to  all  the  conditions 
of  the  deed.  The  shares,  of  those  who  did  not  express  their 
assent,  were  to  be  paid  over  to  Mr.  M^Clenarhnn^  the  person 


5 16  CASES  IN  THE  SUPHEJME  COURT 

1809.      ^^''^°  made  the  convtyance,  and  who  was  notoriously  insolvent; 
7y  and  there  was  reason  to  suppose  thac  it  would  have  been  al- 

^,  most  impossible  for  the  whole  oF  the  creditors  to  receive  notice 

pRANKLrN.of  the  deed,  and  signify  their  assent  within  the  limited  time. 
The  authority  of  that  case  goes  no  farther  than  the  main  point 
decided.  As  to  the  reasons  on  which  the  different  judges  foun- 
ded their  opinions,  thev  wtre  various. 

I  will  now  consider  the  particular  objections  urged  bv  the 
plaintiff's  counsel  in  the  case  before  us. 

1.  The  trustee  was  chosen  bv  the  debtor  himself. 

Although  it  is  most  prudent  and  proper  to  consult  the  cre- 
ditors, as  to  the  choice  of  a  trustee,  when  it  can  be  done  without 
great  inconvenience,  yet  where  there  is  no  bankrupt  law  exist- 
ing, (which  is  our  present  situation)  I  know  of  no  law  which 
forbids  the  debtor  to  make  the  choice  himself.  There  is  no  oc- 
casion now  to  decide,  whether,  under  certain  circumstances,  the 
choice  made  by  the  debtor  v/ould  not  be  conclusive  proof  of 
fraud  ;  as  where  the  trustee  should  be  an  intimate  friend  or 
near  relation  of  the  debtor,  desperate  in  his  fortune,  and  of 
notoriously  bad  character.  No  imputation  whatever  is  thrown 
on  the  trustee  here;  and  it  is  of  some  weight  that  the  deed 
contained  an  opening  for  a  choice  to  be  made  by  the  creditors, 
which  in  fact  afterwards  took  place.  It  is  to  be  remarked  too, 
that  had  Keehj  waited  to  consult  his  creditors  after  Wilt  obtain- 
ed his  verdict,  the  judgment  would  have  been  entered,  and 
the  preference  of  Wilt^  as  to  the  real  estate,  been  established. 
Under  the  bankrupt  system  in  England^  an  attempt  by  an  in- 
solvent trader  to  throw  the  management  of  his  affairs  into  the 
hands  of  a  trustee  of  his  own  choice,  is  in  direct  violation  of 
the  whole  spirit  and  system  of  the  laws,  and  therefore  amounts 
in  itself  to  an  act  of  harikruptcij.  Many  cases  of  that  kind  were 
cited;  but  they  are  inapplicable,  being  founded  wholly  on  the 
English  statute  law. 

2.  As  to  the  want  of  a  ^chedidv.  It  is  very  desirable  that  con- 
veyances of  property  should  be  accompanied  with  schedules. 
They  are  a  great  convenience  to  creditors,  and  a  check  upon 
fraud  in  the  debtor.  But  they  are  more  necessary,  where  part 
of  a  man's  property  is  conveyed  to  particular  creditors,  than 
where  the  whole  is  conveyed  for  the  benefit  o^  all;  and  I  am  sa- 
tisfied that  many  conveyances  of  the  latter  description  have 
been  made  ivithout  schedules,  and  proved  very  beneficial  to  the 


'     OF  PENNSYLVANIA.  517 

creditors.  The  want  of  a  schedule  is  a  circumstance  proper  to      1809. 
be  taken  into  consideration;  but  I  cannot  think  that  it  is,  in  it-     77^ 

V\  I LT 

self,  conclusive  evidence  of  fraud.  i>. 

2.  The  next  objection  is  the  nondelivery  of  possession;  thisFnANKi-iN. 
applies  only  to  the  goods.  I  agree,  that  in  general,  the  conti- 
nuance of  possession  in  the  grantor  is  one  of  the  strongest 
marks  of  fraud,  espcciall}'  if  such  possession  continues  a  con- 
sidtrable  length  of  time.  I  agree  too,  that  in  many  cases  pos- 
session has  been  adjudged  to  make  a  conveyance  fraudulent, 
where  no  actual  frauds  no  criminal  intent,  was  supposed  to  ex- 
ist. Although  the  statute  13  £/i2.,  as  1  mentioned  before,  is 
bottomed  on  the  supposition  of  an  immoral  intention,  yet  it 
has  been  judged  necessary  to  determine,  that  certain  circum- 
stances, which,  in  their  nature,  tend  to  deceive  and  injure  cre- 
ditors, shall  be  considered  as  sufiicient  evidence  of  fraud.  Such 
was  TivijUtPs  case.,  (the  leading  case  on  possession^  where  the 
creditor,  to  whom  a  general  conveyance  of  the  debtor''s  ivhoh 
property  was  made,  in  satisfaction  of  a  just  deljt  amounting  to 
more  than  the  whole  property,  suffered  the  debtor  to  retain 
the  possession,  to  use  the  property  as  his  own,  to  dispose  of 
what  he  pleased  of  it,  and  to  put  his  oivn  mark  on  the  sheep. 
There  is  no  searching  the  heart  of  man ;  but  a  possession  of 
this  kind  tends  so  directly  to  deceive  the  world,  that  it  was 
fair  to  conclude,  that  the  conveyance  in  Tivijne''s  case  was  at- 
tended with  some  secret  trust  lor  the  benefit  of  the  debtor. 
Possession  is  not  always  in  itself  conclusive  evidence  of  fraud, 
but  is  open  to  explanation.  In  the  case  before  us,  the  deed  was 
executed  late  on  Saturday  night.  Sunday  is  not  a  day  of  busi- 
ness. The  trustee  lived  twenty  three  miles  off.  On  Monday  the 
goods  of  the  debtor  were  levied  on  by  Bcrthon  and  son.  Being* 
m  custody  of  the  law,  the  necessity  of  a  delivery  to  the  trustee 
was  less  urgent.  Indeed  I  do  not  see  how  a  delivery  could  then 
have  been  made.  All  that  could  be  done,  was  to  inlbi  ni  ilie 
trustee  what  the  goods  were;  and  that  they  had  been  taken  in 
execution.  Under  these  circumstance;!,  I  think  the  nondelivery 
of  possession  is  sufficientlv  accounted  for. 

4.  The  last  objection,  to  the  validity  of  the  deed,  is  that  no 
money  war.  paid  by  the  grantee.  I  do  not  think  this  objection 
can  be  supported.  The  bargainee  undertakes  to  pay  the  whole 
proceeds  of  the  estate  to  the  creditors  of  the  bargainor,  for  his 
Senefit.   But  independent  of  that,  as  the  objection  is  merely 

\*OL.   I,  .'3  U 


518  CASES  IN  THE  SUPREME  COURT 

1809.      technical,  and  applies  only  to  x\\cform  of  conveyance,  it  is  an- 
xirr.jZ     swered  by  the  opinion  of  Anderson  Justice,  in  Smith  v.  Lane^ 
T.         1  Leon,  iro,  and  of  the  whole  court  in  Fisher  v.  Smithy  Moor. 
Fhanklin.  569,  that  if  a  consideration  of  money  is  expressed  in  a  deed  of 
bargain  and  sale,  there  shall  be  no  averment  or  evidence  re- 
ceived to  the  contrary.  I  adopt  this  principle  so  far  as  to  sup- 
port the  formal  part  of  the  conveyancej  to  go  farther  is  not 
necessary. 

Having  thus  considered  the  principal  objections  to  the  deed, 
my  opinion  on  the  whole  is,  that  it  is  valid.  It  only  remains  to 
determine  at  what  time  it  took  eflfect;  whether  on  its  execution, 
or  on  the  Wednesday  following,  when  the  assent  of  the  grantee 
was  expressly  given. 

This  does  not  appear  to  me  to  be  a  point  of  much  difficulty. 
The  plaintiff's  counsel  concede,  that  where  the  deed  is  for  the 
benefit  of  the  [grantee,  it  is  reasonable  that  his  assent  should  be 
presumed.  They  were  right  in  this  concession.  I  think  it  rea- 
sonable to  make  the  same  presumption,  where  the  grantee  is 
required  by  the  deed  to  do  an  act  useful  to  his  neighbour,  and 
not  injurious  to  himself.  This  presumption  is  liable  to  be  re- 
butted by  shewing  an  express  dissent.  A  man  cannot  be  forced 
to  accept  a  conveyance  against  his  will.  But,  in  the  present  in- 
stance, the  presumption  is  confirmed  by  the  assent  of  the  gran- 
tee, the  moment  he  was  informed  of  the  conveyance.  1  am 
therefore  of  opinion  that  it  took  effect  from  the  execution  on 
Saturday  night;  of  course  it  is  not  subject  to  the  lien  of  the 
judgment  of  the  plaintiff  Wilt. 

Upon  the  whole  of  the  special  verdict,  my  opinion  is  in  favour 
of  the  defendant. 

Yeates  J.  If  the  assignment  made  by  Matthias  Keely  to 
"John  Bartholomew^  in  trust  for  all  his  creditors,  "  in  just  and 
"  equal  proportions  according  to  their  respective  demands, 
"  without  any  preference  or  advantage  to  one  more  than 
''  another,"  can  be  sustained  at  law,  to  take  effect  from  its  date, 
the  n*ecessary  consequence  will  be,  that  judgment  must  be  en- 
tered for  the  defendant;  because  the  assignment  is  prior  in 
point  of  date  to  the  judgments  under  which  the  plaintiffs  seve- 
rally claim.  But  the  assignment  is  attempted  to  be  impeached  on 
several  grounds,  which  I  shall  separately  consider. 

1.   It  has  been  objected,  that  there  is  no  good  consideration 


OF  PENNSYLVANIA.  519 

to  give  validity  to  the  assignment,  the  jury  having  found  that  no  i  goO. 
money  was  paid  by  the  trusti-e  to  Keehi.  The  instrument  recites  \Vilt 
that  "  Kcely  owed  and  was  justly  indebted  unto  divers  persons  v. 
"  in  divers  sums  of  money,  but,  being  incapable  to  pay  off  and  Franklin. 
"  discharge  the  same  to  their  full  amount,  was  nevertheless  de- 
*'  sirous,  so  far  as  lay  in  his  power,  that  they  should  be  satisfied 
"  in  just  and  rateable  proportions,  according  to  their  icspective 
"demands;"  and  that  in  consideration  as  well  of  the  premises,  as 
of  7a'.  Qid.  in  hand  paid  by  the  said  J.  B.  the  receipt  whereof 
"was  thereby  acknowledged,  did  grant,  &c.  In  reason  and  sound 
sense,  money,  honestly  due  from  the  party  assigning,  is  equiva- 
lent to  money-  paid  down;  and  we  have  lord  Hardwicke*s  au- 
thority that  it  is  a  good  consideration,  (a)  OtliL-r  judges  have 
adopted  the  same  doctrine,  and  have  said  (Jb)  "  that  in  deciding 
"  questions  of  this  kind,  the  courts  have  always  disavowed  in- 
"  quiring,  whether  or  not  the  consideration  be  equivalent;  they 
*'  will  not  weigh  it  in  very  nice  scales,  if  it  be  an  honest  trans- 
"  action."  Very  small  considerations  have  been  holden  suffi- 
cient to  give  validity  to  a  deed.  Besides,  the  assignment 
expressed  that  7s.  6f/,  was  paid  by  the  trustee.  This  is  sufficient 
to  raise  an  use  under  the  statute;  and  though  it  is  inserted  in 
the  special  verdict,  that  no  money  was  paid,  it  is  clearly  set- 
tled, (cj  that  there  can  be  no  averment  against  the  consideration 
contained  in  a  deed,  so  as  to  affect  its  binding  force;  and  conse- 
quently it  is  not  susceptible  of  proof. 

2.  It  has  been  urged  that  the  assignment  took  no  eflect  until 
the  rih  Jl/arc/i,  when  Z^«r///6/«j;«cTy  assented  thereto,  and  there- 
fore the  judgments,  entered  on  the  5th  March^  have  their  full 
operation.  To  this  it  is  answered,  that  the  assent,  of  the  party 
that  takes,  is  implied  in  all  conveyances,  by  intendment  of  law, 
till  the  contrary  appears;  and  that  this  is  as  strong  as  the  ex- 
pression of  the  part)-.  Stabit  prcvHumptlo  donee  probetur  in  con- 
trarium.  (rt')  This  doctrine  has  been  asserted  by  Ventris  Justice, 
in  his  elaborate  argument  in  the  much  disputed  case  of  Vhomp- 
son  v.  Leach.,  (r)  which  commenced  in  the  common  pleas,  was 
afterwards  carried  by  writ  of  error  into  the  king's  bench,  {f) 
and  was  finally  determined  in  the  house  oi  lords,  upon  the  rea- 
sons contained  in  the  argument  of  Vcntrls;  so  that  his  opinion 

(a)   1  Att.  46.3,  4.  (</)  2  Ventr.  202- 

ib)  8   T.  1{.  529.  (r)  2   Vcntr.  l'J8. 1  6'/iow.  29Cy  I  A.  7.  2H1. 

(c)  Dyer.  90.  Shep.  Touch.  222,  3.    (/)  3  Mod.  296. 


52U  CASES  IN  THE  SUPREME  COURT 

1809.  finally  prevailed,  {a)  In  Meux  and  others  qui  tarn  v.  Hoxueli 
Wii^  and  Atlee.  (h)  L<nvrence  J.  asks  the  plaintiffs'  counsel  these 
V.  questions  during  their  argument:  "  May  not  a  person  indebted 
Franklin,  u  to  several,  without  the  imputation  of  fraud,  confess  a  judg- 
"  ment  to  a  trustee,  to  enable  him  to  take  all  his  proi)t  rty  for 
"the  benefit  of  all  his  creditors  equally?  Does  not  a  court  of 
"equity  act  upon  the  same  principle,  in  the  distribution  of 
"  assets?  And  why  should  there  be  a  previous  consent  ot  the 
"  cestui  que  trusts,  if  they  consent  afterwards:"  The  fact  more- 
over is,  that  here  was  an  acceptance  of  the  trust,  in  a  reason- 
able time  after  it  was  created.  The  trustee  lived  twenty  three 
miles  from  Keehj.  The  assignment  was  executed  on  Saturday 
night  of  the  3d  March,  at  10  o'clock.  On  3Iondoy  the  5th,  the 
goods  and  furniture  were  levied  on  by  the  sheriff  at  the  suit  of 
Peter  Berthon  and  son.  On  Wednesday  the  7th,  Bartholomew 
accepted  the  trust;  and  on  the  10th,  pursuant  to  a  provision 
contained  in  the  deed,  he  assigned  the  same  to  Thomas  Allibone 
and  Caleb  North,  who  had  been  elected  by  the  creditors.  On  le- 
gal principles  therefore,  the  acceptance  will  refer  back  to  the 
execution  of  the  deed,  and  form  one  transaction,  done  at  the 
same  time. 

3.  It  is  objected  that  Barfhohmerv  was  no  creditor,  nor 
elected  b}-  the  creditors  in  general  to  take  the  assignment.  I 
do  not  see  how  his  not  being  a  creditor  can  detract  from  the 
validity  of  the  instrument.  If,  indeed,  the  assignee  had  been 
insolvent,  or  was  incompetent  to  the  execution  of  the  trust,  it 
would  afford  strong  evidence  of  meditated  fraudj  but  neither 
of  these  facts  is  found  by  the  special  verdict;  and  they  cannot 
be  presumed.  Besides,  this  assignment  contained  a  proviso, 
that  Bartholomexv  should  "grant  and  assign  the  premises,  or 
*'  any  part  thereof  with  the  appurtenances,  to  one  or  more 
"  trustees,  under  the  control  and  direction  of  the  creditors." 
And  it  is  found  by  the  special  verdict,  that  in  pursuance 
thereof,  the  said  John  Bartholomew  assigned  the  premises  to 
Thomas  Allibone  and  Caleb  North,  on  the  10th  3Iarch  follow- 
ing, who  had  been  authorized  by  a  meeting  of  the  creditors  to 
take  the  said  assignment.  This  brings  the  case  within  the  law 
maxim,  omnis  ratihabitio  retro  trahitur  et  mandato  ceqwpa- 
ratur. 

{a)  2  Ventr.  208.  1  Show.  Par.  Ca.  150.  (6)  4  Ecuit  9. 


OF  PENNSYLVANIA.  521 

4.  It  has  been   insisted   that  no  time   has   been  limited,      1809. 
within  which  the  execution  of  the  trust  should  be  completed.      ^^ 
The  words  of  the  assignment,  as  to  this  point,  are,  "  that  the         ^,^ 
'^trustee  shall  forthwith   take  possession  and  seisin  of  theFuANKLix. 
"  premises,  and  within  such  convenient  time,  as  to  him  shall 

"  seem  met-t,  by  public  or  private  sale,  for  the  best  price  that 
"  can  be  procured,  convert  all  and  singular  the  estate,  real, 
"•  personal,  and  mixed  into  money;  and  shall,  as  soon  as  possi- 
"  ble^  collect  all  and  singular  the  debts  and  sums  of  money 
"  above  assigned,  and,  after  deducting  the  costs  and  charges 
"  of  the  trust,  shall  pay  and  apply  all  the  moneys  arising 
"  therefrom,"  &c.  The  force  of  the  objection  is  greatly  taken 
off,  by  the  provisions  of  the  act  of  22d  January  1774:  (a) 
The  commissioners  appointed  by  the  courts  of  common  pleas, 
have  sufficient  powers  to  oblige  the  trustees  and  assignees  of 
insolvent  debtors  to  execute  their  trusts,  and  can  prevent  all 
unreasonable  delays.  Where  the  estate  of  a  person,  who  has 
failed  in  trade,  is  scattered  and  dispersed  in  different  pl;xces, 
it  is  next  to  an  impossibility  to  fix  a  period  of  time,  within 
which  all  his  accounts  can  reasonably  be  expected  to  be  ad- 
justed; and  in  the  cases  of  debtors  discharged  under  the  insol- 
vent acts,  no  period  is  ever  fixed,  within  which  the  assignees 
shall  close  their  trusts. 

5.  It  has  been  further  insisted,  that  the  goods  of  Kecli/y 
and  his  real  estate  with  the  title  deeds,  did  not  pass  into  the 
hands  of  the  assignee;  and  that  the  debtor's  continuance  in 
possession  is  a  mark  of  trust  if  not  of  fraud.  I  agree  the  gene- 
ral rule  to  be,  that  in  the  transfer  of  chattels,  (/»)  unless  pos- 
session aciompanies  and follotvs  an  absolute  deed,  it  is  fraudu- 
lent and  void  as  to  creditors;  and  that  the  vendor's  continuing 
in  possession  is  inconsistent  with  such  deed.  Yet  there  arc 
cases  where,  though  possession  was  not  delivered  at  the  time, 
the  conveyance  was  not  held  to  be  fraudulent.  To  form  a  cor- 
rect judgment  on  this  head,  we  must  distinctly  mark  the  dif- 
ferent events,  as  they  occurred  in  order  of  time.  On  the  3d 
March^  the  assignment  was  executed  and  acknowledged  be- 
tween 9  and  10  o'clock  at  night,  Rartholotncw  not  being  pre- 
sent. This  was  on  Satnrdaij.  The  goofls  and  furniture  of 
KiiJif  remained  in  his  possession  the  residue  of  that  night, 

',a)  1  fit  Lavin  690.  (/.)  2T  H  594.  2  Brn.  Cha.  Ca.  650. 


522  CASKS  IN  THE  SUPREME  COURT 

1809.  ^"t^l  until  Mojiday  morning,  when  the  sheriff  levied  on  them 
WnT~'**  ^^^^  ^"'^  °^  PtYrr  Eerthon  and  son.  On  Tueftday  the  6th,  the 
t;.  assignment  was  sent  on  to  Bartliolomcru^  who  accepted  it  on 
Franklin. the  next  day;  and  on  the  same  day  Keely  was  imprisoned  for 
drbt.  On  the  10th  March,  Bartholomciv  assigned  to  North  and 
Allibone,  in  pursuance  of  the  requisition  of  the  general  credi- 
tors. An  execution  in  the  house  would  prevent  the  assignee 
from  taking  possession  of  any  part  of  the  propertv  on  Monday; 
and  it  would  be  straining  matters  very  hard  to  suppose  that 
Keely  obtained  any  false  credit  by  the  goods  and  furniture  con- 
tinuing in  the  house  as  usual,  the  small  remnant  of  Saturday, 
and  the  whole  of  Sunday.  It  is  not  found  that  he  either  bought 
or  sold,  or  in  any  manner  dealed  during  that  interval;  nor  that 
the  title  deeds  of  his  real  estate  were  fraudulently  withheld 
from  his  assignee.  It  has  been  resolved,  that  not  taking  pos- 
session is  only  evidence  of  fraud,  («)  and,  like  other  equivocal 
facts,  may  be  explained  by  circumstances.  As  to  tht-  title  deeds 
being  retained  by  Keely,  this  circumstance  would  not  have  the 
same  effect  here,  as  possibly  it  might  in  England,  where  they 
have  no  general  statute  for  the  registry  of  deeds;  and  it  has 
been  determined  at  nisi  prius  at  jReading  in  May  1792,  between 
Evans,  executor  oj'  Evans,  v.  ^ones  £sf  ux.  administrator  of  Ni- 
cholas, that  it  was  not  necessary  that  mortgagees  should  have 
possession  of  the  title  papers. 

6.  Lastly,  it  has  been  objected,  that  no  schedule  accompa- 
nied the  assignment.  Much  stress  has  been  placed  on  the  de- 
cision of  the  case  of  Burd,  plaintiff  in  error,  v.  Fitzsimvions  et  al. 
in  the  high  court  of  errors  and  appeals.  (Ji)  As  I  understand 
that  case,  the  majority  of  the  judges  determined  the  assignment 
of  Mr.  M'-Cler.achan  to  be  invalid  on  several  grounds,  but 
chiefly,  as  I  apprehend,  on  this,  that  under  the  terms  of  the 
deed,  a  trust  resulted  to  the  debtor  himself,  for  the  proportions 
of  all  such  creditors,  as  should  not  agree  in  writing  to  accept 
thereof,  within  the  period  of  nine  months  from  the  date.  The 
creditors  were  widely  dispersed,  many  of  them  were  beyond 
sea,  and  the  assignees  were  not  provided  with  the  means  of 
executing  the  trust  reposed  in  them.  It  is  true,  two  of  my 
brothers  were  of  opinion,  that  there  should  have  been  a  sche- 
dule annexed,  designating  the  creditors,  or  explanatory  of  the 
debts  and  property.  But  with  all  due  deference,  I  would  ob- 

ia)l  Burr.AM.  (b)ADaU.7&- 


OF  PENNSYLVANIA.  523 

serve,  that  I  can  find  no  positive  rule  of  law,  or  commercial      1809. 
usage,  which  imperiously  demands  a  schedule  of  creditors  or     ^vTlt 
debtors,  to  confer  validity  on  a  general  assignment.    I  can  find         v. 
no  such  precedent  in  the  books,  nor  have  any  such  occurred  to  Fkanklin. 
me  while  at  the  bar  or  on  the  bench.  I  admit,  that  such  a  list 
may  contribute  to  facilitate  the  labours  of  the   assignees;  but 
the  question  now  is,  whether  it  be  essentially  necessary.  It  the 
books  of  the  debtor  have  been   well  kept,  they  would   afford 
much  better  sources  of  information,  than  an)- schedule;  if  ill 
kept,  no  man  of  extensive  dealings  can  possibly  know  the  true 
state  of  his  accounts  with  individuals.  In  most  cases  the  de- 
mands of  creditors  on  the  spot  can  be  ascertained  by  convening 
them  together. 

It  cannot  be  denied,  that  this  assignment  was  made  for  the 
express  purpose  of  preventing  a  preference  to  the  plaintiffs  in 
these  suits;  or,  in  other  phrase,  of  putting  the  creditors  in  gene- 
ral on  one  common  footing,  without  any  kind  of  priority.  That 
this  was  an  immoral  act,  will  not  be  asserted.  Was  it  then  ille- 
gal, and  prohibited  by  the  words  and  spirit  of  the  stat.  13  Eiiz* 
f.  5.? 

That  act,  as  well  as  the  stat.  27  Eliz.  c.  4.  is  in  affirmance 
of  the  common  law,  whose  principles  and  rules,  as  they  are 
now  universally  known  and  understood,  would,  according  to 
lord  Mcnififield^  (a)  have  attained  every  end  proposed  by  those 
statutes.  The  question  in  every  case  is,  whether  the  act  done  is  a 
bona  fide  transaction;  or  whethi-r  it  is  a  trick  and  contrivance  to 
defeat  creditors.  The  plaintiff's  counsel  have  urged  that  this 
assignment  was  made,  "  to  the  end,  purpose,  and  intent  to  de- 
"  lay,  hinder,  or  defraud  creditors  and  others  of  their  just  and 
"  lawful  actions,"  Sec.  Hut  lord  C.  J.  Ellcnborough  has  declar- 
ed in  Neiix^  qui  tam^  v.  Ilowdl^  "  that  it  is  not  every  feoffment, 
"  judgment,  &c.  which  will  have  the  effect  of  delaying,  or  hin- 
"  dering  creditors  of  their  debts,  that  is  therefore  fraudulent 
"  within  the  statute.  For  such  is  the  effect /;r5  tanlo  of  every^ 
"  assignment,  th:it  can  be  made  by  one  who  has  creditors. 
"  F.very  assignment  of  a  man's  propcrtv,  however  good  and 
"  honest  the  consideration,  must  diminish  the  fund  out  of  which 
"  satisfaction  is  to  be  made  to  his  creditors.  Hut  the  feoffment, 
"judgment,  &c.  must  be  devised  of  malice,  fraud,  or  the  like, 
"  t(v  bring  it  within  the  statute."  Were  there  then,  in  th'-.  words 


S'2'i  CASES  IN  THE  SUPREME  COURT 

1809.  of  the  statute,  "  malice,  fraud,  covin,  collusion,  or  guile,"  iu 
\v7lt  ^^^  present  instance,  "  to  the  intent  to  delay,  hinder,  or  defraud 
V.  "  creditors,  not  only  to  the  let  or  hindrance  of  the  due  course 
Franklin. tt  ^^d  execution  of  law  and  justice,  but  also  to  the  overthrow 
"  of  all  true  and  plain  dealing?"  The  trust  is  in  express  words, 
*'  for  the  use  of  all  the  creditors,  in  just  and  equal  projiortions, 
*'  according  to  their  respective  demands,  without  any  preference 
"  or  advantage  to  one  more  than  another."  In  every  civilized 
country  in  Europe^  it  has  been  anxiously  attempted  to  effect  an 
equal  distribution  of  the  property  of  insolvent  persons.  In 
Great  Britain^  it  is  said  by  lord  Mansfield.,  (a)  that  the  whole 
bankrupt  law  has  two  main  objects  in  view,  to  wit,  the  manage- 
ment of  the  bankrupt's  estate,  and  an  equal  distribution  among 
his  creditors.  Such  was  the  spirit  of  the  system  of  bankrupt- 
cy of  the  United  S'tatct,  under  their  act  of  April  1 800;  and  such 
was  the  spirit  of  the  laws  of  this  state,  passed  anterior  to  the 
adoption  of  the  constitution  of  the  United  States.  I  cannot 
bring  myself  to  believe,  that  a  conformity  to  such  laws  can  be 
denominated  either  an  actual  or  legal  fraud,  and  shall  conclude 
with  the  strong  expressions  of  Grose  J.,  in  Meux  v.  Howell^ 
before  cited:  "  Here  there  is  nothing  like  a  fraud;  and  it 
"  makes  one  shudder  to  think,  that  persons,  who  appear,  like 
"  the  defendant,  to  have  acted  most  honestly,  should  have  been 
"  in  any  hazard  of  being  subjected  to  punishment,  for  having 
"  endeavoured  to  procure  an  equal  distribution  of  his  property 
"  amongst  all  his  creditors." 

My  opinion  is,  that  judgment  should  be  entered  for  the  de- 
fendant, in  both  suits. 

Brackenridge  J.  The  first  thing  that  strikes  me  in  this 
case,  is,  that  it  was  not  until  the  last  moment,  that  the  debt- 
or thought  of  making  an  arrangement  for  the  distribution 
of  his  property,  with  a  view  to  a  pro  rata  payment  of  hie 
debts.  It  was  not  until  after  a  verdict  on  which  judgment 
was  about  to  be  entered,  and  execution  to  issue.  It  may  be 
said  that  the  verdict  was  unexpected,  and  that  there  may  have 
been  a  defence  in  fact,  to  the  action,  though  he  had  not  been 
able  to  make  it  out.  But  we  find  that  he  confesses  judgment 
in  another  case,  to  which  he  had  set  up  a  defence,  and  which 
lessens  the  presumption  that  he  honestly  thought  in  this  case 

(-i)  1  Burr.  47G. 


OF  PENNSYLVANIA.  525 

that  he  had  a  deftnce ;  for  it  proves  that  he  was  not  hicapable      jgOQ. 
of  contesting,  or  at  least  delaying  the  payment  of  a  just  debt.  "vV^jlt 
Now,  if  the  onlv  motive  had  been  the  payment  of  his  debts,  it         -y. 
would  have  looked  better  to  have  begun  sooner.   As  the  caseFnANKi-iN. 
is,  it  has  the  appearance  of  being  driven  to  it,  and  a  suspicion 
arises  of  a  contrivance  to  save  something  for  himself. 

The  second  thing  that  strikes  me,  is,  that  the  trustee  select- 
ed is  not  an  indifferent  person;  but  one  who  acknowledged  in 
the  words  of  the  case  stated,  "  that  he  was  a  friend  of  the  fami-  •     . 

ly,  and  was  willing  to  oblige  him  (the  debtor)  in  this  respect; 
that  he  was  very  willing  to  serve,  but  that  his  illness  would 
prevent  him  from  coming  to  the  city."  Was  there  no  creditor 
at  hand,  who  could  have  been  consulted  in  the  constituting  a 
trustee?  Or  was  there  no  indifferent  person  who  could  have 
been  prevailed  upon  to  be  made  a  trustee?  One  near  at  hand,  in- 
to whose  possession  the  property  could  have  been  delivered 
for  the  use  of  the  creditors.  As  the  case  is,  there  is  no  sub- 
stantial difference  from  the  debtor  being  his  own  trustee, 
and  having  it  in  his  power  to  do  what  he  pleased  with  the 
property. 

It  is  to  be  remarked,  that  the  creditors  are  in  the  power  of 
the  debtor,  with  respect  to  the  debts  due;  and  might  he  not 
say  to  a  particular  creditor,  how  much  do  I  owe  thee?  500  dol- 
lars. Take  thv  bill  and  write  down  1000  dollars.  Is  there  no 
danger  of  such  unjust  itezuarcL/iifi^  where  a  person  is  about  to 
be  insolvent;  and  where  the  liquidation  of  tlie  debts,  is  with 
a  trustee  of  his  own  nomination? 

The  third  thing  that  strikes  me  is,  the  not  delivering  a  sche- 
dule or  list  of  the  property,  which  is  the  next  thing  to  the  de- 
livering possession  of  the  property  itself;  and  which  might  be. 
done,  where  the  property  itself  could  not  be  delivered;  books, 
pajjers,  &c.  An  inventory  of  the  properly  is  the  next  best  thing 
to  the  possession  of  the  property  itself.  If  the  deI)tor  had  made 
a  sale  directly  to  any  <jne,  for  a  valuable  consideration,  would 
he  not  be  likely  to  give  possession?  Would  it  not  be  a  Ijadgtf 
of  fraud  if  he  did  not?  Where  that  could  not  be  done,  would  we 
not  expect  that  he  would  come  as  near  it  as  possible,  by  deliver- 
ing an  inventory  of  the  property  transferred?  Where  the  pos- 
session is  not  changed,  the  property  remains  in  the  power  of 
the  debtor,  and  may  be  disjjosed  of  by  him.  liut  an  inventory 
Tjpay  be  a  check  upon  the  embezzlement. 

Vol.  I.  ^  X 


526  CASKS  IN  THE  SUPREME  COURT 

18(XJ.  ^   '^^  ""*^  say  that  because  every  tiling  was  not  done,  that 

IT^  miglu  liavc  bt-en  done,  the  assignment  is  void;  but  the  leaving 

,,  anv  thing  undone,  is  so  far  a  detect  in  excluding  the  presump- 

FRANKLiN.tion,  that  the  debtor  has  consulted  his  own  interest  in  making 

the  arrangement;  because  he  has  not  put  it  out  ol  his  power  to 

have  an  interest,  from  an  understanding  with  the  trustee,  or 

particular  creditors. 

It  will  be  said  the  exigency  was  pressing  in  this  case;  and 
that  it  ought  to  be  a  sufficient  answer,  that  the  time  did  not 
serve  to  call  the  creditors  together,  and  make  an  assignment, 
and  deliver  the  property  to  them;  or  to  get  a  trustee  of  their 
nomination,  and  to  deliver  jthe  property  to  him  for  their  use; 
or  to  make  out  a  schedule  of  debts  and  credits,  or  an  inventory 
of  the  effects,  and  to  deliver  this  to  the  cixditors  or  trustee:  that  it 
was  impracticable  before  the  judgment  would  have  been  a  lien, 
and  the  execution  attached,  and  the  estate  taken  by  particular 
creditors:  that  equality  is  equity:  that  it   was  the  part  of  an 
honest  debtor  to  endeavour  to  provide  for  ii pro  rafa distribution 
of  his  property;  and  that  having  done  all  that  could  be  done,  in 
the  short  space  of  time  he  had  to  act,  it  ought  to  be  supported. 
But  I  think  it  of  equal,  or  of  more  importance,  that  no  oppor- 
tunity be  given  to  a  debtor  to  arrange  for  himself  at  the  ex- 
pense of  his  creditors;  and  which  opportunity  he  will  have,  if 
such  a  disposition  can  be  supported.  We  shall  have  instances 
enough  of  this  kind  of  last  will  and  testament  of  a  debtor  about 
to  be  insolvent.  If  it  is  meant  to  provide  for  the  payment  of 
debts  honestly,  and  to  let  the  whole  go  to  that  purpose,  why 
begin  so  late?  Why  not  sooner  look  out,  and  make  distribu- 
tion? Insolvency  in  itself  carries  xvith  it  the  presumption  of  dis- 
honesty; for  it  is  oftener  the  result  o{  imprudence^  than  ot  mis- 
fortune; and  I  cannot  call  the  man  who  makes  use  of  the  pro- 
perty of  others,  even  imprudently,  a  perfectly  honest  man;  and 
the  man,  who  runs  in  debt,  makes  use  of  the  property  of  others. 
The  scripture  tells  us,  that  "  he  who  maketh  haste  to  be  rich, 
shall  not  be  innocent;"  and  it  is  usually  such  as  make  haste  to 
be  rich,  that  run   in  debt,  and  become   insolvent.   I  believe  I 
Aight-  sav,  with  great  safety,  that  they  are  seldom  innocent. 
The  law  treats  the  man  who  is  about  to  take  the  benefit  of  the 
inso!vent  act,  as  a  person  somewhat  to  be  suspected;  he  is  ex- 
amined on  oath,  and  undergoes  a  purgation.   We  lay  hold  of 
his  conscience,  and  superadd  the  fear  of  a  prosecution  for  per- 


OF  PENNSYLVANIA.  527 

jury,  to  the  sense  of  moral  obligation.  We  dre  far  from  leaving      1809, 
tiie  disclosure  to  a  simple  declaration.    The  presumption  is,     7^ 
that  it  is  his  purpose  to  defraud;  and  hence  notice  to  creditors,         ^_ 
and  the  privilege  of  crossexamining  in  open  court,  in  order  to  Frankmn.. 
satisfy  all  concerned  with  respect  to  the  fairness  of  the  surren- 
der, and  account  of  property. 

Where  the  debtor  undertakes  to  make  an  equal  provision 
for  the  payment  of  his  debts,  and  professes  good  motives,  he 
presents  himself  with  a  better  appearance  somewhat;  never- 
theless, we  are  justified  in  distrusting  his  motives. 

I  think  it  reasonable  to  require  of  him  everything  that  will 
rebut  the  presumption  of  an  interest  for  himself. 

It  may  be,  that  the  oldest  creditor  has  not  sued  first,  or  first 
recovered  judgment.  But  the  presumption  is,  that  the  patience 
of  the  oldest  creditor  has  been  first  exhausted,  and  that  he  has 
sued  first;  and  on  the  principles  of  natural  justice,  the  oldest 
debt  should  be  first  paid.  The  law  cannot  carry  the  adminis- 
tration of  justice  to  such  extent,  as  to  take  notice  of  the  oldest 
debt.  It  could  not  be  conveniently  practicable.  But  it  will 
take  notice  of  the  suit  first  instituted;  and  the  maxim  will 
apply,  prior  i?i  tempore  potior  in  Jure.  In  cases  where  the 
order  of  paying  debts  is  left  to  the  law,  it  will  give  a  prefer- 
ence to  a  judgment;  and  between  judgments  themselves,  it 
will  respect  the  priority.  Here  the  debtor  has  undertaken  to 
cut  out  judgments,  and  to  put  them  on  a  fooling  with  other 
debts.  It  is  true,  he  may  have  thought  some  of  them  of  more 
meritorious  consideration;  but  with  me  the  more  natural  pre- 
sumption is,  that  he  was  irritated  at  the  process  that  had  been 
instituted,  and  the  recovery  against  him;  and  that,  for  that 
reason,  he  wished  to  defeat  the  recovery,  and  give  it  no  other 
advantage  than  other  creditors  had;  which  I  think  unfair,  hav- 
ing put  them  to  the  expense  and  delay  of  legal  proceedings. 
And  tliough  the  conclusion  may  not  be  inevitable,  that  he  was 
com!)ining  an  interest  for  himself,  or  that  it  was  the  dominant 
and  ruling  motive,  yet  I  cannot  see  but  that  he  had  it  in  his 
power  to  conceal,  and  save  property  for  his  own  use,  where 
the  trustee  was  of  his  own  nomination,  and  where  a  number 
of  the  creditors  were  rendered  favourable  l)y  the  race  made  to 
get  ahead  of  the  judgment  and  the  fxccution,  and  to  j)ut  them 
all  on  a  footing. 


528  CASES  IN  THE  SUPREME  COURT 

1809.  ^t  has  been  said,  that  fraud  is  not  to  be  presumed;  it  must 

■y\-,LT      ^^  proved.   But  this  is  proving  it  by  circumstantial  evidence. 

7..         Fraud,  in  most  cases,  is  but  a  conclusion  from  circumstances; 

I  uANKLiN.and  circumstances  are  but  presumptive  jjroof;  and  therefore  it 

is  not  the  meaning  of  the   maxim,  that  presum])tion  shall  not 

arise  from  circumstances. 

But  it  has  been  argued  also,  that  fraud  not  being  found  by 
the  jury,  the  presumption  cannot  be  weighed  and  the  conclu- 
sion drawn  by  the  court.  But  on  a  special  verdict  the  conclu- 
sion must  be  drawn  by  the  court;  for  it  is  the  nature  of  the 
special  verdict,  that  it  be  left  to  the  court  to  infer  from  the 
facts  what  the  jur}-  might  have  done  had  they  taken  upon 
themselves  to  infer,  and  give  a  general  verdict,  which  contains 
the  conclusion  of  fact  from  the  evidence,  and  the  conclusion  of 
law  from  the  fact.  The  jury,  in  this  case,  have  found  the  facts 
from  the  evidence;  and,  as  in  the  case  of  every  other  special 
verdict,  it  remains  with  the  court  to  draw  the  conclusion  of 
fraud,  whether  it  be  a  conclusion  of  fact,  or  of  laiw.  Doubtless 
t?ic  conchision  of  fact  must  be  in  the  minds  of  the  court,  before 
ihcy  can  draw  the  conclusion  of  law. 

Under  the  circumstances  of  this  case,  if  I  am  to  draw  the 
conclusion,  it  will  be,  that  the  debtor  had  an  interest  in  the 
arrangement;  but,  even  supposing  that  he  had  not,  the  dispo- 
sition in  the  hands  of  a  trustee  of  his  own  nomination,  and 
the  property  remaining  with  himself  for  a  time,  and  no  inven- 
tory of  the  effects  in  the  hands  of  a  creditor,  leave  it  in  his 
power  to  make  use  of  the  property  after  the  assignment,  and 
before  it  comes  to  the  hands  of  the  trustee;  and,  for  this  rea- 
son, I  niMfit  think  such  disposition  against  good  policy,  and 
not  to  be  supported.  I  think  it  belter,  that  a  judgment  creditor 
should  take  the  whole,  or  the  greater  part,  of  a  delator's  pro- 
perty, than  that  a  door  to  fraud  should  be  opened  by  sanction- 
ing such  a  disposition.  The  truth  is,  I  do  not  much  like  the 
idea  of  cutting  out  the  judgment  creditor,  and  taking  the  dis- 
position out  of  the  hands  of  the  law,  when  it  is  just  about  to 
take  the  property.  A  sense  of  wrong  arises  in  my  mind.  I  think 
it  unfair;  the  heart  revolts;  and  the  only  difficulty  with  me  is, 
to  analyse  and  give  good  reasons  for  feelings  which  I  think 
must  be  just. 

But  it  is  not  necessary,  in  this  case,  to  draw  the  conclusion 
of  fraudulent  intention,  or  of  legal   fraud,  so   as  to  avoid 


OF  PENNSYLVANIA.  52? 

the  deed:  that  is,  to  render  it  absolutely  void  as  between  the      1809. 
parties.   It  will  be  sufficient  if  it  can  be  avoided,  or  rendered  ~,,t 

^  .  W ILT 

voidable,  with  regard  to  those  who  do  not  become  parties;  ^, 
and  the  operation  restrained  in  the  case  before  us,  short  of  Franklin. 
aftVcting  the  lien  of  the  execution.  I  will  admit  that  a  debt  is  a 
valuable  consideration,  and  will  support  a  conveyance  as  much 
as  money  paid  at  the  time  of  the  conveyance;  for  it  must  be 
considered  as  a  consideration  past.  But  the  law  will  not  pre- 
sume an  acceptance  bv  the  creditor,  as  in  the  case  of  money 
paid,  or  where  the  grant  is  a  gift.  Because  it  does  not  neces- 
sarily follow,  that  it  will  be  for  the  benefit  of  the  crtdiror,  or 
that  he  would  think  it  for  his  benefit;  and  it  is  upon  this  ground 
alone,  that  the  law  will  presume  a  subsequent  assent.  This  may 
be  collected,  in  particular,  from  the  argument  2  Ventris  198. 
v.'here  the  case  was  a  grant  on  a  consideration  good,  not  valu- 
able, and  the  estate  a  gift.  But  it  does  not  ioliow,  with  moral 
certainty,  that  a  creditor  will  take  property  for  his  debt,  or 
wait  the  sale  of  property,  under  the  management  of  a  trustee 
not  of  his  own  nomination.  Money  is  what  he  had  a  right  to 
expect;  and  it  may  be,  that  he  will  insist  upon  money  paid  im- 
mediately, or  to  be  collected  by  the  process  of  the  law.  Even 
taking  it  for  gran tiil,  that  the  debtor  is  about  to  be  insolvent, 
and  unable  to  discharge  the  whole  of  his  demands  against  him, 
it  does  not  necessarily  follow  that  he  will  take  property,  or  wait 
the  sale  of  it,  for  the  debt  is  still  recoverable  from  the  fu- 
ture effects.  But  where  the  property  conveved  is  not  supposed 
to  be  an  equivalent,  or  will  not  satisfy  the  debt  of  every  creaiior, 
and  a  pro  rata  payment  only  can  be  eontempliited,  it  is  not 
an  intendment  of  law  that  the  creditor  will  accept.  It  may  be 
very  probable  that  he  will  accept;  but  it  cannot  be  legall}'  infer- 
red. The  law  will  not  impl\-  it,  as  in  a  case  where  ^//c  pro?/? 
cannot  but  be  for  his  benefit.  But  su|)posing  a  presumption  of 
law  to  arise  that  the  creditors,  other  than  the  judgment  credi- 
tors, will  accept,  there  can  be  no  presumption  that  the  judgment 
creditors  will  accept,  who  have  it  in  their  power  to  take  the 
property  immediately  under  executions.  For  these  reasons, 
the  subsequent  assent  of  the  creditors,  expressl)'  given,  will  be 
necessary  to  complete  the  transfer  in  this  case;  and  the  assign- 
ment can  have  no  operation  until  that  assent  is  given. 

But  let  it  be  supposed  that  in  the  case  of  a  conveyance  im- 
mediately to  the  creditors,  an  assent  to  take  may  Ik-  presumed. 


53U  CASES  IN  THE  SUPREME  COURT 

1809.      t'^^  assignment  is  not  immediately  to  the  creditors;  a  medium 
11,  is  used:  a  trustee:  and  there  is  no  consideration  of  the  trust  to 

\V  ILT 

^,  the  trustee  himself.   It  is  not  accompanied  with  any  benefit  to 

Franklin. him;  for  anv  benefit  that  is  pretended  is  that  of  the  debtor. 
There  is  no  presumption  of  law  that  he  will  undertake  the  trust. 
It  is  on  this  ground  that  the  principle  must  rest,  that  where  the 
trustee  has  no  benefit,  it  is  not  to  be  taken  for  granted  that  he  will 
accept.  The  law  to  this  effect  is  suggested  in  a  late  publication, 
Roberts  on  Fraudulent  Conveyances^  430.  "  A  general  convey- 
"  ance  or  assignment  to  a  sti-anger,  in  trust  to  pay  the  debts  of 
"  the  person  conveying,  is  clearly  not  a  consideration  sufficient 
"■'  even  to  raise  a  use  upon  a  covenant  to  stand  seised.  Nor  will 
"  it  suffice  to  support  an  actionable  promise;  for  in  such  case  no 
"  consideration  moved  from  the  promisee  of  advantage  to  the 
"  party  promising."  It  is  clear,  therefore,  that  the  assent  of  the 
trustee  is  necessary  to  undertake  the  trust,  before  he  becomes  a 
trustee,  and  an  interest  can  vest  for  the  cestui  que  trust.  Until 
that  is  done,  there  is  no  conductor  of  the  interest;  it  remains 
with  the  owner  of  the  property.  Nan  constat  that  the  trustee 
named  will  undertake  the  trust.  Although  there  is  an  act  of 
assembly,  1  St.  L.  690.,  which  provides  for  the  calling  trustees 
to  account,  yet  it  makes  no  provision  for  the  compelling  any 
one  to  be  a  trustee.  It  cannot  therefore  be  taken  for  granted 
that  a  trust  exists;  and  that  a  delivery  to  one  of  the  deed  of 
assignment  to  be  delivered  to  the  trustee,  renders  the  delivery 
complete  for  the  use  of  the  creditors.  The  property  remains  in 
the  debtor,  and  is  liable  to  be  taken  for  his  debts,  unless  by  re- 
lation the  subsequent  assent  of  the  trustee  can  be  coupled  with 
the  assignment  in  the  first  instance,  so  as  to  operate  from  the 
date.  This,  as  between  the  parties  who  subsequently  assent, 
there  can  be  no  doubt,  will  be  the  effect;  for  it  is  consonant 
to  justice,  and  to  reason,  that  it  should  be  so.  It  is  a  matter 
between  themselves;  and  the  inchoate,  or  inceptive,  and  con- 
cluding act  make  but  one.  It  is  all  the  same  transaction.  It  is  in 
support  of  the  intention  of  the  parties,  that  the  instrument  should 
operate  from  the  date.  But  relation  is  a  fiction;  and,  in  fictione 
juris  semper  subsistit  equitas.  Relation  shall  do  no  wrong  to 
strangers.  2  Vcntris  119.  There  are  many  authorities  in  the 
books  to  this  effect.  But  if  there  were  not,  it  is  such  a  principle 
of  reason  and  common  sense,  that  it  could  not  be  doubted.  If  at 
the  date  of  the  conveyance  the  property  is  not  absolutely  out  of 


OF  PENNSYLVANIA.  53 i 

the  debtor,  but  the  operation  suspended  until  the  subsequent      1809. 
agreement  of  him  who  is  to  take,  that  suspension  cannot  inter-     7^: 
cept  the  act  of  the  law  which  attaches  the  property.  I  therefore         v. 
take  it,  that  the  assignment  in  this  case  did  not  take  place  of  Franklin. 
the  execution. 

Judgment  for  defendant. 


Murray  and  another,  Executors  of  Miller, 
against  Wilson. 

In  Error.  Saturday, 

April  1st. 

ERROR  to  the  common  pleas  of  Philadelphia  county.  The  com- 

IVilson,  the  plaintiff  below,  brought  an  action  for  money  !]J;5",f^f^j.'J^^^j 
had  and  received  by  Miller  to  his  use.  Jlliller  was  prize  agentvesscl  which 
for  the  Enterprise,  a  public  vessel  of  war,  and  received  the  ^'''^^j^^^^f ^1^'"^'* 
proceeds  of  a  prize  captured  by  her  while  Wilson  was  on  board,  g'wd  witness 
The  question  was  as  to  the  capacity  in  which  the  plaintiff  was  j" '^"j,p^^°^ 
entitled.  To  prove  that  he  was  entitled  as  a  sailmaker,  his^'jr/i'isithe 
counsel  offered  in  evidence  the  following  certificate  under  the [^'j^au^c  the 
seal  of  the  navy  department.  "  Accountant's  office,  January  i)l:iintlff's 
"  1st,  1802:  I  do  hereby  certify  that  it  appears  by  the  rolls  of  p,!j'^^.  |^,     • 
"  the  schooner  Enterprise,  filed  in  this  office,  that  WUlium  Wil-     iV^ixre. 
^^  son  was  sailmaker  on  board,  from  the  6th  yuly  1800,  to  the  ^.,,l.J|f^^,^^^'^.'^ 
*•'■  5l\\  March  1801.   Tho.   Turner,  accountant."  This  evidence  tin;  account- 
was  objected  to;  but  it  was  admitted  by  the  court.  The  defend- j^vy  depan- 
ant  then  offered  in  evidence  the  deposition  of  captain  Sluav,  the"'^"^  mul<r 
commander  of  the  Enterprise  at  the  time  the  prize  was  made,  t.i,.it  j^,p.,rt. 
to  prove  that  the  plaintiff  was  not  a  sailmaker  but  a  common '"''"t.  is  cvi- 
seaman,  to  which  the  plaintiff's  counsel  objected,  because  cap- 
tain Shuiv,  as  commander  ol  the  sdiooner,  was  interested  in  the 
decision  of  the  cause;  and  the  evidence  was  accordingly  over- 
ruled by  the  court,  who  sealed  a  bill  of  exceptions  upon  both 
points. 

Chauncey  for  the  plaintiffs  in  error.  The  certificate  was  not 
evidence.  A  sailmaker  is  a  warrant  officer,  appointed  by  the 
president,  4  U.  S.  I.axvs  1:3.  'JO.  1J8;  and  it  is  an  unyielding 


532  CASES  IN  THE  SUPREME  COURT 

1809.      rule,  that  vhere  a  right  is  established  by  a  specific  authority, 
~x7~,  IT.      the  authority  must  be  produced.   It  is  the  best  evidence.   An 
V.         attorney  must  produce  the  roll,  a  judge  his  commission;  and  so 
Wilson,   a  sailmaker  his  warrant.    T'tllard  v.  Shehbeare  (a),  Foster  v. 
Cale  {b),  2  Roll.  Ab.  574.  But  tlie  certificate  merely  states  that 
it  appears  bv  the  rolls:  which  will  not  answer,  for  the  court 
must  make  its  own  conclusions.   The  least  that  can  be  offered 
is  either  a  sworn  or  oHice  copy  of  the  roll  itself.  Bull.  N.  P.  22G. 
The  accountant  has  no  authority  to  give  such  a  certificate,  be- 
cause he  has  not  the  custody  of  the  seal.  The  secretary  of  the 
department  should  certify.  4  U.  S.  Laivs  233.  470.  As  to  the 
interest  of  captain  Sluni\  as  commander,  it  will  not  bear  an  ar- 
gument. He  is  entitled  to  three  twentieths,  if  he  was  acting  in- 
dependently, acd  two  if  his  vessel  was  one  of  a  squadron  or 
fleet,  which  is  a  certain  proportion.  5  U,  S.  Laivs  124. 

Meredith  for  defendant  in  error.  The  warrant  might  be  re- 
quired between  the  party  and  the  United  States^  but  not  between 
him  and  his  agent.  The  officers  keep  their  warrants  with  them 
upoi>  service,  and  the  agent  receives  by  the  roll,  and  therefore 
must  pay  by  it.  The  commander  of  the  capturing  vessel  is 
bound,  on  pain  of  forfeiting  all  his  prize  money,  to  transmit  to 
the  navy  department  and  to  the  prize  agent,  complete  lists  of  the 
officers  and  men  entitled  to  a  share  of  the  capture,  inserting  the 
quality  of  every  person  rating.  5  U.S.  Laxvs  110.  These  are 
absolute  between  the  agent  and  claimant.  Then  as  to  the  person 
certifying:  The  navy  department  is  a  public  known  office,  and 
its  seal  entitled  to  faith.  The  accountant  is  a  public  known  oflfi- 
cer,  created  by  law  for  a  particular  province  of  that  department. 
4  U.  S.  Laxvs  233.  What  he  certifies  in  his  province,  as  for  in- 
stance the  rolls  in  question,  is  a  certificate  Irom  the  proper  offi- 
cer of  the  navy  department,  and  is  entitled  to  the  seal.  It  is  not 
like  the  case  of  a  private  clerk  using  the  seal  of  office.  Certify- 
ing that  it  appears^  is  no  objection.  The  roll  is  well  known  to 
be  a  list,  in  which  is  entered  the  person's  name,  sailmaker,  from 
such  a  day  to  such  a  day;  and  the  certificate  has  all  that.  As  to 
the  interest,  I  concede  the  witness  had  none  strictly  as  com- 
mander; but  in  this  case  he  gave  a  certificate  that  the  plaintiff 

(^)  2  Wils.  366.  (4)  Stra.  76. 


OF  PENNSYLVANIA.  533 

was  sailmaker,  and  if  Wilson  had  recovered  as  such  contrary  to      i809. 
the  fact,  the  witness  would  have  been  liable  to  the  officers  of" 
the  same  rate,  for  the  loss;  he  was  therefore  directly  interested 


Murray 

Z'. 

to  prevent  a  recovery.  Wilsox. 


Reply.  The  interest,  now  objected,  forms  no  part  of  the  ex- 
ception, ard  in  fact  it  has  no  foundation;  for  if  the  witness  was 
answerable  for  an  incorrect  return,  he  swore  against  his  interest, 
as  his  evidence  established  the  error. 

TiLGHMAN  C.  J.  This  is  a  writ  of  error  to  the  court  of  com- 
mon pleas  of  Philadelphia  county.  It  is  an  action  brought  by 
William  Wilson,  the  defendant  in  error,  who  was  plaintiff  below, 
against  William  Miller^  for  money  had  and  received  for  his  use. 
Wilson  was  in  the  navy  of  the  United  States,  and  entitled  to  a 
share  of  prize  money.  Alillrr  was  the  agent  for  prizes;  and  the 
dispute  was,  whether  the  plaintiff  was  entitled  to  a  share  in  the 
capacity  of  a  sailmaker,  or  of  a  common  seaman.  He  claimed 
as  a  sailmaker.  In  the  course  of  the  trial,  exceptions  were  taken 
to  the  opinion  of  the  court  on  two  points  with  respect  to  the 
admission  of  evidence,  which  are  stated  in  a  bill  of  exceptions 
annexed  to  the  record.  The  defendant  offered  to  give  in  evi- 
dence the  deposition  of  yohn  Slunv,  who  was  captain  of  the 
United  States  schooner  Enterprise,  when  she  captured  the 
jirize,  concerning  which  the  dispute  arose.  This  deposition 
was  rejected  by  the  court,  because  Shaxv,  as  commander  of  the 
said  schooner,  was  interested  in  the  decision  of  the  cause. 
There  was  no  proof  of  any  interest  except  such  as  arose  from 
his  being  commander.  I  am  therefore  of  opinion  that  he  was  a 
competent  witness;  because  by  the  act  of  congress,  regulating 
the  distribution  of  prizes,  he  was  entitled  to  a  certain  propor- 
tion, which  could  not  be  affected  by  the  share  which  the  plain- 
tiff would  draw,  cither  as  a  sailmaker  or  common  seaman.  It 
has  indeed  l)een  suggested,  in  the  course  of  the  argument  here, 
that  he  had  an  interest  in  preventing  the  jjlaintiff's  recovery, 
because  he  had  given  a  certificate  that  the  plaintiff  was  sailma- 
ker on  board  the  Enterprise,  and  therefore  if  the  plaintiff  re- 
covered, Shaiv  might  be  sulyect  to  an  action  by  the  rest  of  the 
crew  for  having  certified  what  was  not  true;  but  it  is  unneces- 
sary to  enter  into  the  merits  of  this  objection,  because,  not  ap- 

VoL.  I.  :'.  Y 


534  CASES  IN  THE  SUPREME  COURT 

1809.      pearing  on  the  record,  we  can  take  no  notice  of  it.  It  is  not 
~~.  stated  on  the  record,  that  Shaw  gave  any  certificate. 

>  1 U  R  R  A  V  tJ  -' 

^,  I  shall  give  no  opinion  on  the  exception  to  the  certificate  of 

Wilson.  Thomas  Turner;  because  I  take  for  granted,  that  the  plaintiff, 
when  this  cause  shall  be  tried  again,  will  take  care  to  be  fur- 
nished with  a  certificate  from  the  navy  department,  free  from 
all  the  objections  which  have  been  made  to  this. 

On  the  whole  I  am  of  opinion  that  the  judgment  of  the  court 
of  common  pleas  be  reversed,  and  a  new  trial  ordered. 

Yeates,  J.  I  shall  avoid  giving  a  decisive  opinion  whether 
the  certificate  issued  by  the  accountant  of  the  navy  department, 
under  the  seal  of  that  office,  was  evidence  in  this  case.  But  I 
have  no  doubt  that  a  true  copy  of  the  muster  rolls,  properly  cer- 
tified, would  have  been  admissible.  The  ground,  on  which  1 
think  the  judgment  should  be  reversed,  is,  that  the  deposition 
of  captain  John  Shaxv  was  not  permitted  to  go  to  the  jury.  It 
was  objected  that  he  was  interested  in  the  event  of  the  cause, 
as  commander  of  the  schooner  Enterprise^  on  board  whereof 
was  the  defendant  in  error,  who  has  instituted  this  suit  for  the 
recovery  of  his  share  of  prize  money  as  a  sailmaker. 

It  has  been  candidly  admitted  by  the  counsel  of  Wihoii^  that 
captain  Shaxv  s  prize  money  could  neither  be  diminished  nor  in- 
creased by  whatever  might  be  the  result  of  this  action.  The 
share  of  the  captain  is  regulated  by  an  act  of  congress  passed 
23d  April  1800.  But  it  is  said  that  if  captain  Shaw  should  be 
permitted  to  substantiate  the  fact,  that  the  plaintiff  below  was 
not  a  sailmaker  on  board,  he  would  thereby  render  himself  re- 
sponsible; and  consequently  is  interested.  The  force  of  this  rea- 
soning rests  on  the  fact  of  his  being  the  officer  who  made  the 
returns  from  which  the  certificate  is  extracted.  But  this  does 
not  appear  from  the  certificate,  which  only  states,  that  it  ap-. 
pears  by  the  rolls  of  the  schooner  Enterprise,  filed  in  the  ac- 
countant's office,  that  William  Wilson  was  sailmaker  on  board 
from  the  6th  July  1800,  to  5th  3Iarch\m\.  Now  Shaxu  might 
not  have  made  these  returns;  and  in  fact  it  appears  by  the  de- 
position that  he  had  the  command  of  the  vessel  from  October 
1799  to  October  1800,  when  the  state  of  his  health  obliged  him 
to  leave  her.  The  result  therefore  would  be,  that  of  the  eight 
months,  during  which  Wilson  was  on  board*  of  the  schooner, 
Shaxv  commanded  her  only  three  months. 


OF  PENNSYLVANIA.  5S5 

But  even  admitting  that  captain  S/unuhad  made  the  returns,      1809. 
I  do  not  sec  how  this  would  ailect  his  competency.  His  depo-  2^i^;j^j^^^^Y 
sition  was  offered  bv  the  defendant  below,  in  order  to  shew         -v. 
that  he  was  not  a  sailmaker,  within  the  true  meaning  ol  the  act  Wilson. 
of  congress,  entitled  in  that  quality  to  prize  money.  He  is  ad- 
duced to  swear  against  his  own  interest;  because  if  the  making 
of  a  false  or  imperfect  return  would  create  a  liability,  he  is 
brought  to  establish  a  fact  which  may  eventually  produce  that 
effect.  A  man  will  be  admitted  to  swear  against  his  own  inte- 
rest, though  not  in  favour  of  it.  ^ 

In  every  point  of  view,  I  think  captain  Shaw  was  a  compe- 
tent witness;  that  his  testimony  ought  to  have  been  rtceivedj 
and  consequently  that  the  judgment  below  should  be  revei^sed, 
and  a  venire  facias  de  novo  be  awarded. 

Brackenridge,  J.  was  holding  a  court  of  nisi  prius  during 
the  argument,  and  gave  no  opinion. 

Jtidgment  reversed,    and 
venire  de  jjovo  awarded. 


S H  E  R  E  R  against  Hodgson.  Saturday 

Lessee  of  Hodgson  against  S h e r e r .  "'^P"^ ^^^' 

THESE  causes  were  tried  at  a  circuit  court  for  Chester  inJ>"'ors  nor 
^,  ,  .         ,    .      .  I—  ,  ,  .  I       •        ,      (lr;i\vii  hv  lo' 

j/;/«^  1808,  when  the  plamtitt  m  each  action  obtamed  af.j,.  the  m-c- 

verdict.  The  juries  who  tried  them, were  not  chosen  for  the^'"^  ^""""■^• 

,.,,.,,,,  ,  liiit  drawn 

court  at  whicli  the  trials  took  place;  hut  were  summoned  to  a  upon  h  for- 
previous  court,  when  they  held  a  view,   and  to  save  the  ex-">'' °^*'''' 

-  ,  .  -11  A  sion;(ii<l  coii 

pense  ot  another  view,  were  continued  over  by  consent.  Ai;,|„^^^il  over, 
full  panel  of  jurors  notwithstanding  was  selected  and  returned  ="'^'  ""^  t""^'- 
for  the  other  issues  ot  the  y  «/;/<•  circuit.  from  tin- 

It  was  agreed  by  counsel  to  propose  the  question  of  costs  io*.''""'^>'  '"" 
this  court;  and  accordingly   Frazer  for  Sherer^  and  IJefn/JhilI\(,^,\\\^r  \Mri\. 
for  Nodifson,  now  submitted  the  following  questions,  without  '  .''^'•'^l'^"'^'' 

oi:i  view  lA 
argument.  noiclinrfre, 

1 .  Whether  jurors  not  drawn  by  lot  for  the  present  court,  but  •''^'•"  *"  ^^"'■ 
drawn  and  struck  on  a  loimer  occasion,  and  continued  over,  inusi  be  paiii 

arc  entitled   to  be  paid  bv  the  eo\int\  ;  if  not,  whether  bv  any '^> '^'"■.'*'^"''- 

'  '  '  pnily  in  tin: 

one,  and  whom.  mum- 


53G  CASES  IN  THE  SUPHl'.Ml.  COURT 

1 80'J.  -•  ^^'llethc•l•  the  expense  of  a  view  is  to  be  paid  liy  the  count)', 

Sheueu    *^^^^-^  ^^^^  parties;  and  if  by  the  parties,  whether  by  both,  or  by 

,..         the  party  failing,  or  the  party  demanding  the  view. 
Hodgson. 

Tii.GHMAN  C.  J.  The  juries  who  tried  these  causes  were 
not  drawn  by  lot,  and  summoned  to  the  court  at  which  they 
were  tried;  but  having  been  drawn  and  struck  sometime  I)e- 
fore,  they  were  continued  over  by  consent,  and  at  the  request 
of  the  parties,  for  their  own  convenience;  because  it  saved  the 
expense  of  a  new  view. 

Two  questions  are  siabmitted  to  the  court,  with  respect  to 
costs.  1.  Whether  the  jurors  who  thus  attended  are  to  be  paid 
by  the  count}-;  and,  if  not,  then  by  whom  they  are  to  be  paid. 
2.  Whether  the  expense  of  the  viexv  is  to  be  paid  by  the 
county  or  the  parties;  and  if  by  the  j>arties,  whether  by  both,  or 
by  the  one  against  whom  the  verdict  was  given;  or  by  the 
party  demanding  the  view. 

1.  I  think  there  is  no  pretence  for  charging  the  county  with 
the  costs  of  these  juries;  because  they  were  not  summoned  for 
the  benefit  of  the  suitors  in  general,  but  for  the  particular  con- 
venience of  these  parties.  The  usual  number  of  jurymen,  ex- 
clusive of  these,  were  summoned  for  the  general  business  of 
the  court,  and  paid  by  the  county. 

2.  I  am  of  opinion  that  the  expense  of  the  vieru  is  not  to 
be  paid  by  the  county;  because  it  is  unreasonable,  and  there 
is  no  law  which  authorizes  it.  It  is  to  be  paid  by  the  parties; 
and  like  other  costs,  it  must  fall  ultimately  on  the  losing 
party. 

Yeates  J.  It  appears  to  me,  that  only  the  jurors  drawn  by 
lot,  as  the  law  directs,  are  entitled  to  be  paid  for  their  attend- 
ance by  the  county.  Otherwise  the  consequence  would  be,  that 
individuals  might  Ijurthen  the  county  with  costs,  which  were 
never  contemplated  b\-  the  legislature.  It  follows  of  course  that 
the  attendance  of  the  jurors,  not  drawn  by  lot,  both  on  the  view 
and  at  the  trial,  must  be  paid  for  by  the  losing  parties  respect- 
ively, according  to  the  events  of  the  two  causes. 

Brackf.kridge  J.  was  engaged  at  a  nisi  prius  during  the 
argument,  and  gave  no  opinion. 


OF  PENNSYLVANIA.  537 

1809. 

Shaffer  as^amst  Kintzer. 

"  Saturday^ 

April  1st. 

In  Error. 

THIS  was  a  writ  of  error  to  the  common  pleas  of  ^er^^  Entire dama- 
county.  The  action  below  was  brought  by  Kintzer  against  1^^^^,^^^^^^.^^^^^^^ 

Shaffer,  for  slander;  and  in  the  declaration,  the  slanderous  counts  in 

,  ,   •  1  •     r  ♦  slander, 

words  were  laid  m  tour  counts.  o„c  of  vvhicl\ 

The  first  count  charo-ed,  that  whereas  an  action,  for  a  de-is  bad. 

",    ,,  11-1  Judsrment 

mand  not  exceeding  100  dollars,  was  dependmg  between  a  cer- j.p^.gj.sed, 

tain  Christian  Ztrhe  and  the  said  /iTi/z^zcr,  before  Daniel  Lud-'^^^^'<'enire  de 

/.   ,  ,  »  1     •        •  r   u  ?ioi'o  award- 

101^^  esquire,  one  of  the  commonwealth's  justices  ot  the  peace,  ^jj 

which  action  came  to  be   tried  on  the   24th   December  1805,     To  say  of  a 

,        .         P  ,,  man,  '■^  he  has 

before  the  said  D.  Lxidxvig^  then  and  there  having  lull  power ^,„„;.„y^/^e," 
and  authority  to  try,  &c. ;  at  which  trial  the  same  John  Kintzer  '^^""^  jiction- 
then  and  there,  before  the  same  D.  Z.,  was  in  due  manner  ooUoquium 
sworn  upon  the  holv  evangelists,  to  say  and  certify  the  truth,'^f'nff«f a" 

'  .  o  '  y  J  _     extrajudicial 

the  whole  truth,  and  nothing  but  the  truth,  ot  the  matters  in  .iffidavit  be- 
controversy,  (he,  the  said  £).  Ludxvig  then  and  there  having  [|J?'^y^ij''*_Ji<^*^ 
authority  to  administer  such  an  oath)  and  all  and  singular  the  Nor  arc  the 
things  which   he  knew  to  be  true,  concerning  the  matters  i'^^''j'[f.^.Ij[|j^." 
controversv,  did  testify  and  give  in  evidence,  and  the  truth,  nueiulo of 
the    whole    truth,    &c.  did    depose,    according    to    the  oath  []'^'^';'|;J^ J^^? 
aforesaid;  nevertheless,  the  said  Jacob  Shajfer.,  not  being  ig-.m  innuendo 
norant  of  the  premises,  but  maliciously  contriving  and  i"tend-[|^JJ||^'^*j^'^^|^ 
ing  to  cause  the  said  Kintzer  to  be  brought  in  danger  of  the  conneciin}^ 
pains  and  penalties  of  the  laws  made  against  those  who  com-^lJ^"^^^|V^*^ 
mit  perjury,  afterwards,   in  a  cert.iin  discourse   of  and  con-towliich 
ccming  the  ^?iu\  Kintzer ^  and  the  testimony  so  as  aforesaid  J^^^j-.'^^^.^i^/ 
sworn,  in  the  presence   and  hearing  8ic.  did  falsely    publish  a  meaning-, 
f)f  the  said  yo/m  Kintzer^  thr-  following  false,  feigned,  scan- J"*^^"^","'"^'^^; 
dalous,  and  defamator)-  words,  to  wit,  "  He"  (the  said  yc/j«  contradicto- 
Kintzer  int^aiiiriR)  "has  sworn  false;"  (hereby  meaning  thatj^^^^'-'^^  ^'^^^^^^ 
the  said  John  Kintzer  had  committed  perjury.)  alter tluii- 

The  Ad'tc?;/'/ count  pursued  the  first,  txcejjt  as   to  the  words  ^" 
spoken,  which  were  laid  in  the  second  person,  "  You  have 
sworn  false." 

The  third  count  charged,  that  wliereas  on  the  24th  Decem- 
ber 1805^  the  said  Kintzer  did,  on  the  application  of  the  said 
Shaffer,  make  and  declare  an  oath  of  him  the  said  KiniZLry  dull/ 
taken  and  sworn  before  Daniel  Ludwig,  esquire,  one  of  the  com- 


538  CASES  IN  THE  SUPREME  CObRT 

1 809.  monxveultlis  justices  of  the  peace.,  (jhtm  and  there  having 
Shaffer  (^^'thority  to  administer  such  oath)  that  he  the  said  John  Kintzer 
V.  had  not  given  up  and  relinquished  a  certain  xvagcr,  which  he 
KiNTZER.  /[^^  before  that  ti?ne  made  and  concluded  with  a  certain  Chris- 
tian Zerbe,  and  did  then  and  there  swear  to  the  same  with 
great  truth  and  veracity;  nevertheless,  the  said  Shaffer^  mali- 
ciously intending  to  scandalize  him,  afterwards,  &c.  in  a  dis- 
course concerning  the  said  oath,  falsely  and  maliciously  spoke 
and  published  the  following  false,  scandalous,  and  defamatory 
words,  "  He,"  (tlie  said  John  Kintzer  meaning)  "  has  sworn 
''  false;"  (hereby  7neaning  that  the  said  John  Kintzer  had  com- 
mitted perjury  before  the  said  Daniel  Ludwig,  esquire.,  in 
swearing  that  he  the  said  John  Kintzer  had  not  given  up  the 
iva^er^  which  he  had.,  bfore  the  taking  of  the  said  oath.,  made 
ivith  the  said  Christian  Zerbe.) 

The  fourth  count  differed  from  the  third,  as  the  second  did 
irom  the  first. 

The  jury  found  a  general  verdict  for  the  plaintiff,  and  assess- 
ed entire  damages.  The  general  errors  were  assigned;  and  the 
question  was,  whether  the  declaration  contained  any  cause  of 
action. 

Evans  for  the  plaintiff  in  error.  The  ground  of  action  is, 
that  the  crime  of  perjury  was  imputed  to  Kintzer;  and  the 
question  is,  whether  this  appears  by  the  declaration.  To  con- 
stitute perjury,  there  must  be  a  lawful  oath  administered  by 
one  that  hath  authority,  in  some  judicial  proceeding.  3  In.st. 
164.  The  objection  to  the  first  and  second  counts  is,  that  the 
kind  of  demand,  for  which  the  action  was  brought,  is  not  stated; 
without  which  it  does  not  appear,  that  the  justice  had  jurisdic- 
tion; and  if  he  had  not,  all  was  coram  nonjudice.,  and  no  perju- 
ry could  be  committed.  3  Inst.  166.  Besides,  Kintzer  was  a 
party;  and  an  oath  could  not  be  lawfully  administered  to  him, 
except  in  particular  cases,  which  should  have  been  set  out.  The 
third  and  fourth  counts  are,  however,  the  most  faulty;  and,  as 
the  damages  are  entire,  if  one  count  is  bad,  judgment  must  be 
reversed.  The  words  themselves  do  not  import  a  perjury. 
"  You  have  sworn  false"  may  mean  a  false  swearing  in  con- 
versation; it  is  the  same  as  to  call  one  "  a  forsworn  man," 
which,  by  all  the  authorities,  is  not  actionable.  3  Burn.  fust. 
229.  ISth  ed.  3  Inst.  166.  Gorf  v.  Moorton  (ci)y  Stanhope  v. 

(a)  Cro.  Eliz.  9Q5. 


OF  PENNSYLVANIA.  539 

Blitli  (ci).  The  case  of  Holt  v.  Scholefeld  (b)  is  in  point.  There      1809. 
it  was  held,  that  saying  of  the  plaintiff,  "  Tim  Holt  has  forsworn   Shaff^r 
"  himself,  and  I  have  three  evidences  that  will  prove  it,"  would         v. 
not  support  an  action;  and  the  court  laid  down  the  true  rule,  Kintzer. 
that  either  the  words  must  be  such  as  can  be  understood  only 
in  a  criminal  sense,  or  it  must  be   shewn  by  a  colloquium  in 
the  introductory  part,  that  they  have  that  meaning.  Then  what 
is  the  colloquium  here?   It  is  of  a  voluntary,  extrajudicial,  affi- 
davit, made  before  a  justice  of  the  peace.  The  magistrate  had 
no  authority  to  administer  the  oath,  for  two  reasons:  there  was 
no  cause  depending;  and  the  person  who  took  the  oath  was  a 
party.  2   Haxvk.  lib.  1.  c.  69.  sec.  4.  4  Bl.  Com?ti.  136.   If  the 
words  were  even  actionable  by  themselves,  and  would  be  in- 
tended to  impute  a  perjury,  this  colloquium  takes  away  from 
them  that  character.  To  say  of  a  man,  "  You  are  a  thief,  you 
*'  stole  a  plantation,"  is  not  actionable,  because  from  the  whole 
it  appears  no  crime  was  charged,  which  is  essential  according 
to  the  rule  in  Onsloio  v.  Home;  (c)  so  here,  if  to  say   "  you 
"  have  sworn  false"  is  actionable,  yet  the  colloquium  cures 
it;  because  it  is  that  you  have  sworn  falsely  in  an  extrajudicial 
affidavit,  wherein  a  perjury  could  not  be  committed. 

Frazer  for  defendant  in  error.  There  are  three  principles 
by  which  this  declaration  is  to  be  tried.  1.  That  the  words  must 
be  taken  as  they  were  understood  by  those  who  heard  them. 
2.  That  it  is  not  necessary  to  allege  that  the  oath  was  in  a  cause 
depending ;  it  is  sufficient  to  say  it  was  taken  before  one 
having  authority.  3.  That  after  verdict  the  innuendos  are  to  be 
taken  as  true. 

1.  The  rule  of  '■^  tnitiori  sen.su'^  has  long  been  exploded. 
Words  are  to  be  taken  in  the  common  sense,  and  according  to 
common  parlance;  Bull.  N.  P,  4.  Beovor  v.  Hides;  (d)  and  af- 
ter verdict,  the  court  will  not  be  guessing  and  inventing  a 
mode,  as  it  is  said  in  Pcakc  v.  Oldham  {e)  in  which  it  is  barely 
possible  for  the  words  to  have  been  spoken  without  meaning 
to  charge  the  plaintiff  with  being  guilty  of  a  crime.  The  charge 
of  swearing  falsely,  in  common  sense,  anil  common  parlance, 

(fl)  Micp.  15.  a.  (rf)  2  WiU.  300. 

(Z.)  6  D.  &  li.  C>'J-'.  {<■)  Cnvp.  277. 


540  CASES  IN  THE  SUPREME  COURT 

1809.      is  an  imputation  of  perjury.  The  case  oi  Hoyle  v.  Toung,  (a) 

Shafkeu    "^  principle,  goes  much  furthtr.   But 

%>.  2.  As  to  the  third  and  fourth  counts,  upon  which  alone 

KiNTZER.  there  can  be  any  doubt,  there  is  a  colloquium  which  fixes  the 
charge  to  be  of  false  swearing  before  a  justice  of  the  peace, 
whose  authority  is  averred.  That  the  party  himself  swore,  is 
no  objection;  for  in  many  cases  his  oath  is  taken,  as  to  prove 
his  book  of  original  entries,  or  to  wage  his  law ;  and  Co!ome\' 
case  (/^)  was  an  action  for  imputing  precisely  this  perjury.  The 
only  question  then  is,  whether  perjury  may  be  committed  in  an 
affidavit  before  a  justice  of  the  peace.  Now  there  is  no  case 
whatever  to  the  contrary;  and  ver}^  often  such  an  affidavit  may 
be  necessary.  Indeed  the  cUse  of  Gurneth  v.  Derry  (c)  is  a 
clear  authority  for  a  power  in  the  justice  to  administer  such 
an  oath;  because  it  decides  that  it  is  slander  simply  to  charge 
a  man  with  being  forsworn  before  a  justice  of  the  peace. 
There  the  words  were,  "  thou  art  a  forsworn  man,  and  didst 
"  take  a  false  oath  against  me  before  justice  Scawen;''''  and 
judgment  was  arrested  solely  because  it  did  not  appear  that 
Scawen  was  a  justice  of  the  peace;  the  whole  court  declaring, 
that  "  though  to  say  that  one  is  forsworn  before  a  justice  of 
"  the  peace  is  actionable,"  yet  there  it  did  not  appear  that  he 
was  a  justice;  and  it  might  be  the  man's  name  was  Justice.  To 
the  same  point  is  Ward  v.  Clark,  (d)  In  Holt  v.  Scholefield,  it 
was  not  mentioned  before  whom  the  oath  had  been  taken,  or 
that  any  oath  in  fact  had  been  taken. 

3.  The  innuendo,  however,  is  that  Shaffer  intended  to  impute 
perjury;  and  in  this  state  it  was  ruled  in  Rue  v.  Mitchell^  {e) 
that  such  an  innuendo  must  be  taken  to  be  true  after  verdict. 
The  words  were  "  you  have  taken  a  false  oath  before  squire 
"  Rusli'^  (meaning  that  the  plaintiff  had  committed  the  crime 
of  perjury  in  a  certain  oath,  by  the  said  plaintiff  then  lately 
taken  before  William  Rash.,  esq.  one  of  the  justices,  &c.  in  a 
cause  before  the  said  justice  depending);  and  a  motion  in  ar- 
rest of  judgment  was  overruled. 

Ingersoll  in  reply.  The  very  definition  of  perjury  is,  that 
it  must  be  committed  in  some  judicial  proceeding.  It  is  not 

(a)  1  Wash.  150.  {d)  2  Johnson   10. 

(A)  Cro.  Jac.  204.  fe)  2  Ball.  58. 

Cc)3  Lev.  166. 


OF  PENXSYLVANIA.  541 

enough  that  the  party  may  think  the  oath  necessary;  it  must      1809. 
I'elate  to  some  civil  or  criminal  prosecution.  We  therefore ""! 

1  •  Ll-l-i-j  ^  r        ■  OHAFFER 

come  to  a  short  pomt,  whether  the  third  count  speaks  or  a  ju-  ^, 
dicial  proceeding.  And  it  clearly  does  not.  Gurneth  v.  Derry  Kintzer. 
may  be  all  right,  if  you  suppose  the  court  to  speak  with  refer- 
ence to  a  cause  before  the  justice,  and  no  doubt  they  do;  but 
as  to  Rue  v.  Mitdiell^  though  I  hold  in  great  respect  the  opi- 
nions of  the  judge  who  decided  that  cause,  yet  I  must  doubt 
■whether  it  be  law;  it  allows  an  innuendo  to  alter  the  whole 
meaning  of  the  words,  while  its  proper  office  is  to  explain. 

TiLGHMAN  C,  J.  This  cause  comes  before  us  on  a  writ  of 
cn-or  to  Berks  county.  It  is  an  action  of  slander  brought  by 
Kint'zer  the  defendant  in  error,  against  Shaffer  the  plaintiff  in 
error.  The  declaration  contains  four  counts.  The  jury  found  a 
general  verdict  for  the  plaintiff,  and  assessed  entire  damages; 
and  judgment  was  entered  on  that  verdict.  The  error  assigned 
is,  that  the  matters  set  forth  in  the  third  and  fourth  counts, 
constitute  no  legal  cause  of  action;  and  that  is  the  point  for  our 
decision. 

In  the  M//r/ count  it  is  declared  that  whereas  the  plaintifl'did, 
on  the  application  of  the  defendant,  make  and  declare  an  oath, 
of  him  the  said  plaintifl",  duly  taken  and  sworn  before  D.  Lud- 
wi^  esq.  one  of  the  commonwealth's  justices  of  the  peace  &c., 
then  and  there  having  autliority  to  administer  said  oath,  that 
the  said  plaintifl  had  not  given  up  and  relinquished  a  certain 
wager  which  he  had  made  with  a  certain  Christian  Zerbcy 
(which  said  oath  was  true,)  nevertheless  the  defendant,  ma- 
liciously intending  to  injure  him  &c.,  in  a  discourse  concern- 
ing the  said  oath  &c.,  spoke  the  following  false,  scandalous 
and  defamatory  words:  "  He"  (the  said  plaintifl"  meaning) 
"  has  sworn  false,"  (meaning  that  the  plaintiff  had  committed 
perjury  before  the  said  1).  Ludwi^^  t:sq«,  in  swearing  that  he 
had  not  given  up  liie  said  wager.)  The  fourth  count  is  the 
same  as  the  third,  except  that  the  words  arc  laid  to  have  been 
spoken  of  the  plaintifl  in  the  second  person,  "  nou  have  sworn 
false." 

The  objection  to  these  counts  is,  that  it  is  not  alleged  that 
any  cause  was  depending  before  the  justice,  in  the  course  of 
which  the  oath  was  administered.   On  tiic  contrarv  it  would 

Vol.  I.  n  Z 


542  C:ASES  IX  THE  SUPREME  COURT 


1809.      seem  that  no  cause  was  depending;  but  that  the  plaintiff  took 
~Z  the  oath  voluntarily  at  the  request  of  the  defendant. 

^  In  order  to  constitute  perjury,  there  must  be  a  "  lawful  oath 

KiNTZER.  "  administered  in  some  judicial  proceeding."  False  swearing, 
in  a  voluntary  alHdavit  made  before  a  justice  of  the  peace, 
beforc  whom  no  cause  is  depending,  is  not  perjury;  nor  can 
it  be  punished  by  indictment,  although  it  is  a  very  immo- 
ral and  disgraceful  action.  With  regard  to  words  which  will 
support  an  action  of  slander,  I  take  the  rule  to  be  as  laid  down 
by  C.  J.  Vc  Grey  in  the  case  of  Onslozv  v.  Home  in  the  year 
1771;  which  is  an  authority  in  this  court.  They  must  contain 
an  express  imputation  of  "  some  crime  liable  to  punishment, 
"  some  capital  oflence,  or  other  infamous  crime,  or  misde- 
'^'  meanor."  This  rule  is  recognised  and  approved  by  the  court 
of  king's  bench  in  Holt  v.  Scholejield^  (l^Qe)  in  which  it  was 
held  that  it  was  not  actionable  to  say  that  a  man  had  "  forsworn 
*'  himself,"  (meaning  that  he  had  commited  perjury).  But  it 
has  been  urged,  by  the  counsel  for  the  defendant  in  error,  that 
the  defect  in  the  words  is  cured  by  the  innuendo  of  perjury, 
which  the  jury  have  found  to  be  true.  It  is  the  office  of  an 
innuendo  to  elucidate  the  words,  by  connecting  them  with  the 
subject  to  which  they  refer,  and  averring  a  meaning  not  incon- 
sistent with,  or  contradictory  to,  them;  but  it  cannot  alter  the 
nature  of  the  words.  If  A  say  of  B  that  he  cut  down  and  car- 
ried away  one  of  his  trees,  innuendo  that  B  committed  felony, 
this  will  not  make  the  words  actionable;  because  they  do  not  in 
their  nature  import  a  felony.  The  case  oi  Rue  v.  Mitchell^ 
2  Dall.  58.  was  cited  and  relied  on  by  the  counsel  for  the  de- 
fendant in  error.  In  that  case  the  words  were  "  you  have  taken 
"  a  false  oath  before  squire  A^zas//,"  (meaning  that  the  plaintiff 
had  committed  perjury  in  an  oath  taken  by  him  before  William 
Rush^  one  of  the  justices  Sic,  in  a  cause  before  him  depending). 
The  court  were  of  opinion  that  the  action  might  be  supported, 
and  laid  considerable  stress  on  the  innuendo^  which  the  jury  had 
found  to  be  true.  There  is  this  remarkable  difference  betweea 
that  case  and  the  one  before  us,  that  there  tht  innuendo  expressly 
asserted  that  the  oath  was  taken  in  a  cause  depending  before  the 
justice;  but  in  this  case  the  innuendo  contains  no  such  averxnent. 
Besides,  the  third  and  fourth  counts  ofthe  declaration,  in  the  pre- 
sent case,  describe  the  proceeding  before  the  justice,  in  such  a 
manner  as  to  make  it  appear,  that  no  cause  was  depending;  and 


OF  PENNSYLVANIA.  543 

if  the  innuendo  contradict  it,  it  is  of  no  avail.  I  think  the  case      1809. 
oiRuex.  Mitchell  extended  the  efficacy  of  an   innuendo   far      ,.^^,„„ 

111  J    T    "^HAFrER 

enough;  rather  farther  than  any  former  case  had  done;  and  1         ^, 
am  not  for  going  beyond  it.  U  innuendos  can  alter  the  meaning  Kintzer 
of  words,  they  may  be  employed  to  very  mischievous  purpo- 
ses.  A  man  may  be  made  responsible  not  for  what  he  said,  but 
for  what  other  persons  may  suppose  he  intended  to  say. 

I  am  of  opinion,  on  the  whole,  that  the  judgment  in  this 
case  must  be  reversed,  because  the  words  charged  in  the  third 
and  fourth  counts  are  not  actionable. 

Yeat^s  J.  concurred. 

Brackenridge  J.  In  the  case  of  Rue  v.  Mitchell^  2  Dall.  58. 
"  it  appeared,  on  the  trial  of  the  cause,  that  the  oath  in  question 
*■*  was  voluntarily  taken  by  the  plaintiff  in  order  to  satisfy  the 
"  defendant  upon  a  controverted  fact  involved  in  the  suit." 
The  voluntariness,  spoken  of  here,  is  not  of  a  nature  with  that 
which  is  properly  called  a  voluntary  oath;  for  there  was  a  suit 
depending  before  the  justice,  and  of  which  he  had  jurisdiction. 

The  jurisdiction  of  the  justice  in  civil  matters  not  being  of\. 
common  law  origin,  but  taken  from  the  civil  law,  where  the 
judge  determines  the  fact  as  well  as  the  law,  it  has  not  been 
the  understanding,  under  the  acts  establishing  his  jurisdiction, 
that  he  is  bound  by  every  rule  of  common  law  evidence;  but 
that  he  may  exercise,  and  it  has  been  the  usage  to  exercise,  a 
chancery  power,  in  purging  tlie  conscience,  by  admitting  an 
oath  on  the  part  of  the  plaintiff  in  support  of  his  demand,  or  an 
answer  upon  oath  on  the  part  of  the  defendant.  And  even  in  the 
courts  of  justice,  and  before  a  jury,  if  a  party  plaintiff  or  de- 
fendant waives  the  strict  rule  in  regard  to  testimony,  and  offers 
to  leave  a  matter  to  the  oath  of  his  adversary,  I  do  not  know 
that  the  court  could  reject  it;  the  party  called  upon  being  willing 
to  make  the  oath.  For  it  is  a  renunciation  by  the  party  of  a  right 
which  the  law  has  introduced  for  his  sake.  Yet  such  could  not 
be  called  a  voluntary  oath;  for  tliough  the  court  or  justice,  be- 
fore whom  it  is  taken,  could  not  impose  it,  yet  it  is  imposed 
hy  the  allegation  which  the  oath  is  admitted  to  repel.  Such  was 
the  occasion  of  the  oath  in  the  case  of  Rue  v.  Mitchell;  and  it 
was  legally  administered.  Perjury  was  both  in)))utable  and  pu- 
nishable in  such  a  case.  Law  wager  still  exists  in  our  law;  and 


544  CASES  IN  THE  SUPREiME  COURT 

1809.      under  certain  forms  of  action,  the  defendant,  at  this  day  In 

T~  courts  of  iustice,  Avould  have  his  privilege  to  repel  on  his  own 

Shaffer  J  ,  ,       ,  .  r  ■ 

,,.         oath  and  that  of  others,  the  allegation  of  the  plaintiff.  These 

KiNTZER.  oaths,  though  in  a  certain  sense  voluntary,  would  not  be  extra- 
judicial. 

An  oath  administered  by  a  justice  wlicre  he  has  no  jurisdic- 
tion, cannot  be  distinguished  from  an  oath  administered  by  one 
not  a  justice;  for  the  proceeding  of  any  tribunal,  of  a  civil  na- 
ture, must  be  founded  on  the  plaint  of  a  party;  and  where  the 
tribunal  proceeds  without  plaint,  or  entertains  a  plaint  over 
which  it  has  no  cognisance,  there  is,  in  contemplation  of  law, 
no  proceeding  before  it;  and  an  oath  taken  in  such  a  case  is  ex- 
trajudicial. A  justice  has  no  jurisdiction  even  on  plaint  made, 
where  the  jurisdiction  is  not  given  by  positive  statute,  or  where 
it  is  excluded  by  those  principles  wiiich  exclude  the  jurisdiction 
of  every  judicial  forum;  as  where  cognisance  of  the  plaint  is 
against  public  policy,  or  general  convenience.  Where  a  matter 
actually  exists  in  dispute,  and,  superseding  all  necessity  of 
process,  it  is  agreed  to  be  referred  to  the  oath  of  a  party  on  a 
certain  particular,  the  oath  will  not  be  extrajudicial,  provided 
the  matter  in  dispute  be  of  such  a  nature  as  is  within  the  cog- 
nisance of  the  justice;  for  it  is  an  agreement  of  the  parties  to 
terminate  the  controversy  in  this  way.  I  will  not  say,  that,  even 
if  the  justice  had  not  cognisance  of  the  matter  on  the  ground 
of  cause  of  action,  from  the  subject  of  the  controversy,  or  from 
the  quantum  of  the  demand,  an  oath  on  such  an  agreement 
might  not  be  administered  to  the  parties,  or  to  a  witness  offered 
by  them,  and  agreed  upon  to  be  admitted;  and  that  in  that  case 
it  might  not  be  judicial.  But  no  agreement  would  warrant  the 
administering  an  oath  in  a  matter,  the  taking  cognisance  of 
which  would  be  contrary  to  good  policy:  as  in  the  case  of  a 
wager  respecting  an  election,  or  the  defect  or  infirmity  of  a  third 
person.  No  prosecution  would  lie  on  an  allegation  of  perjury  in 
such  a  case;  nor  would  an  action  of  slander  lie  for  an  imputation 
of  perjury  in  such  a  case.  The  law  throws  it  entirely  out  of  its 
protection,  and  can  take  no  notice  of  it  unless  as  a  misdemea- 
nor in  the  officer  who  administers.  The  law  takes  no  notice, 
says  Blackstone  in  his  Commentaries,  of  any  perjury  but  such  as 
is  committed  in  some  court  of  justice  having  power  to  admi- 
nister an  oath;  or  before  some  magistrate,  or  proper  officer  in- 
vested with  a  similar  authority,  in  some  proceedings  relative  to 


OF  PENNSYLVANIA.  545 

a  civil  suit,  or  a  criminal  prosecution.   For  it  esteems  all  other      1809. 
oaths  unnecessar>-  at  least,  and  therefore  will  not  punish  the  "^^ffer" 
breach  of  them.  For  which  reason  it  is  much  to  be  questioned         7.. 
how  far  any  magistrate  is  justifiable  in  taking  a  voluntary  affida-  Kintzer. 
vit  in  any  extrajudicial  matter,  as  is  now  too  frequent  upon 
everv  petty  occasion;  since  it  is  more  than  possible  that  by  such 
idle  oaths  a  man  may  frequently,  in  for 0  conscientite,  incur  the 
guilt,  and  at  the  same  time  evade  the  temporal  penalties,  of 
perjurv.  4 -fi/.  Comm.  137.  And  Coie  in  his  Institutes  lays  it 
down  as  has  been  quoted,  that  where  the  court  has  no  authority 
to  hold  plea  of  the  cause,  it  is  coram  non  judice.  3  Inst,  166, 
cites  Bract,  lib.  ^.fo.  180. 

To  applv  these  principles  to  the  case  before  the  court.  The 
words  laid  to  be  spoken  are  '■'•that  he  sxvore falsely.''''  These 
words  do  not,  of  themselves,  necessarily  import  a  charge  of 
perjur\-,  or  any  indictable  offence.   "  Perjury  is  a  crime  com- 
*'  mitted,  when  a  lawful  oath  is  ministered  by  any  that  hath 
"authority,  to  anv  person  in  anyjudicial  proceeding,  who  swear- 
"  eth  absolutely  and  falsely  in  a  matter  material  to  the  issue,  or 
"  cause  in  question,  by  their  own  act,  or  by  the  subornation 
"of  others."  3  Inst.  164.  "  If  a  man  calleth  another  a  per- 
"  jured  man,  he  may  have  his  action  upon  the  case,  because  it 
"must  be  intended  contrarj-  to  his  oath  in  a  judicial  proceed- 
"  ing;  but  for  calling  him  a  forsworn  man,  no  action  doth  lie, 
"because  the  forswearing  may  be  extrajudicial."   3  Inst.  166. 
And  to  say  generally  that  a  man  hath  forsworn  himself,  is  not 
actionable;  because  he  may  be  forsworn  in  common  conversa- 
tion, or  it  may  be  an  expression  of  mere  passion  and  anger,  4 
Co.  15.  b;  nor  shall  it  be  intended  to  be  referred  to  a  case  where 
perjury  may  be  committed. 

It  may  be  said,  that  after  a  verdict,  it  shall  be  taken  to  have 
been  in  evidence,  that  the  oath,  which  was  spoken  of  bv  the  de- 
fendant, and  said  to  liave  been  sworn  falsely,  had  been  taken 
in  the  course  of  a  judicial  proceeding,  and  legally  administered; 
but  the  introductory  averment,  as  well  as  the  roUof/uimn^  shews 
that  the  supposed  defamatory  words  were  ap])lied  to  a  mere 
voluntarv  oath,  extrajudicially  and  illegalh-  taken.  So  that  il 
appears  to  me,  the  errors  assigned  in  this  caus«  arc  supportccl. 
and  warrant  a  reversal  of  the  judgment. 

Judgment  reversed. 


546  CASES  IN  THE  SUPREME  COURT 

1809.  Frazcr  then  moved  the  court  to  award  a  venire  de  tiovo.,  two 

'Shaffer~°^  the  counts   being  clearly  good;  and  he  cited  the  case  of 


V. 


Grant  v.  Astell^  Doitg:  731,  where  Buller  J.  lays  down  the  doc- 
KiNTZER.  trine,  which  is  adopted  by  the  court,  that  where  entire  dama- 
ges have  been  assessed  upon  several  counts,  some  good,  and 
others  bad,  and  judgment  for  that  reason  is  reversed,  a  court  of 
error  may  award  a  venire  dc  novo. 


TiLGHMAN  C.  J.  I  believe  there  is  a  late  case  in  which  a 
venire  de  novo  was  refused  in  slander;  but  I  see  no  reason  for 
the  distinction.  The  case  in  Doug-las  is  good  law  and  good 
sense;  and  I  am  willing  to  abide  by  it. 


Per  Curiam, 


Venire  de  novo  awarded. 


4^  «<e/ 

^^'157 


fully  bcpot 
ten;  and  in 
case  of  his 
death  with- 
out such  is- 
sue, he  or- 
ders C.  his 
executors 


Saturday ,  LcSSCC  of  S M I T H  aga'mSt  F 0 L W E L L . 

April  1st. 

^.devises  all  XT  JECTMENT  for  a  messuage  and  lot  in  the  city  of  Pliilu- 

his  real  es-    -l-^  delphia^  in  which  the  following  case  was  stated,  to  be  con- 
tate  to  his        .  ,         ,  .   ,  ,. 

son  B.  and  sidered  as  a  special  verdict. 

]iis  heirs  law-      "  John  Bleakley  the  elder,  being  seised  in  fee  of  the  premises 

in  the  declaration  mentioned,  on  the  8th  day  oi  August  1768, 

duly  made  and  executed  his  last  will  in  writing  of  that  date, 

and  thereby  devised  as  follows:  "  As  for  and  concerning  my 

"  worldy  estate,    I  give,  devise,  and  bequeath,  the  same  in 

"  manner  following,  &c.  I  give  and  bequeath  to  my  brother 

and  adminis-u  £)avid  Bleakleii,  living  in  the  north  of  Ireland^  the  sum  of  10/. 

tralors  tosell  ^'  o  7 

the  real  es-   "  Sterling.   Also,  I  give  and  bequeath  to  my  brother  William 

late  within    «  Bleakley^  living  near  Dungannon^  the  sum  of  10/.  sterling, 
ter  the  son's "  Also  I  give  and  bequeath  to  my  sister  Margaret  Harkness^ 

death;  and    u  ^f  Dun^amion^  the  sum  of  100/.  sterling.  Also  I  give  and 

hebcfjueaths  .  00 

the  proceeds "  bequeath  to  my  sister  Sarah  Boyle^  wife  of  the  rev.  Mr.  Boyle^ 

bJotherl^a'li'd "  ^^^  ^""^  °^  ^^^'  s^^'''^'"?-  ^^so,  I  give  to  my  cousin  Archibald 
sisters  by      "  Toiing^  of  Philadelphia^  an  annuity  of  30/.  Pennsylvania  mo- 

^^hdr  heirs      "  "^7' '°  ^^  P^^*^  ^^"^  ^^^  °^  ^^^  rents  and  profits  of  my  real 

forever,  or 

such  of  them  as  shall  be  living  at  the  death  of  the  son,  to  be  divided  between  Uiem  in  er/ual 
proportions,  share  and  share  alike  All  (he  brothfis  ;ind  sisters  die,  leaving  issue.  Then  C. 
dies,  and  afterwards  £  ,  the  son,  without  issue.  Heirs  is  a  word  of  linnitation;  and  none  of 
the  brrjtlierf  and  sisters  beini?  alive  at  ihe  deatli  of  .5.,  the  object  of  the  power  to  sell, 
has  failed;  their  issue  are  not  entitled;  and  a  sale  by  the  executors  of  C.  conveys  no  title. 
A  power  to  C.  and  his  executors  to  sell,  may  be  executed  by  the  executors  of  C*  exe- 
cutor, if  the  object  of  sale  continues. 


V. 
FOLWELX. 


OF  PENNSYLVANIA.  547 

*■'  estate,  on  the  25th  clay  of  March  in  every  year,  during  the      1809. 
"joint  lives  of  him  the  said  Archibald  Young,  arid  my  son     x         „ 
"  John  Bleakley  or  his  heirs  kavfully  begotten;  but  in  case  of        of 
"  the  decease  of  my  said  son  xvithout  issue  lawfidly  begotten  as     Smith 
"  aforesaid^  in  the  lifetime  of  the  *«i^  Archibald  Young,  then  the 
"  said  annuity  is  to  cease^  and  in  lieu  thereof  I  give  and  bequeath 
"  unto  the  said  Archibald  Young  and  his  assigns  the  sum  of 
"  400/.  ster/ingy  payable  out  of  the  proceeds  of  mij  real  estate^ 
"  when  the  same  is  sold  and  disposed  of  according  to  the  inten- 
"  tion  of  this  my  will  hereinafter  mentioned,  a)id  before  any 
"  dividend  is  made  of  the  proceeds  of  my  said  estate;  and  this 
"  legacy  or  bequest  is  made  to  my  said  cousin  A.  T.  not  only 
"  for  the  natural  affection  I  have  and  bear  to  him  as  a  relation, 
"  but  al-^o  as  afidl  compensatio7i  for  the  services  he  has  already 
"  rendered  me,  and  in  lieu  of  his  commission  for  the  trouble 
"  he  may  hereafter  have  in  the  execution  of  this  my  will.   All 
"  the  rest  and  residue  of  my  estate  real  and  personal,  &c.  I 
"  give,  devise,  and  bequeath  to  my  son  John  Bleakley  and  his 
"  heirs  lawfully  begotten;  and  iji  case  of  the  decease  of  my  said 
"  son  without  such,  issue^  then  I  do  direct  and  order  my  said 
"  cousin  Arthil)ald  Young,  his  executors  or  administrators^  to 
''  sell  and  dispose  of  my  real  estate  7vithin  two  years  after 
**  the  decease  of  my  said  son  John  Bleakley,  to  the  best  advan- 
"  tage;  and  I  do  hereby  give  and  bequeath  the  proceeds  thereof 
"  to  my  said  brothers  David  Bleakley  and  William  Bleakley, 
"  and  my  said  sisters  Margaret  Harkness  and  Sarah  Boyle, 
*'  and  their  heirs  forever^  or  such  of  them  as  shall  be  living  at 
"  the  decease  of  my  said  son^  to  be  divided  betrveen  them  in  equal 
proportions^  share  and  share  alike^  after  deducting  out  of 
such  proceeds  the  sum  of  400/.  sttrling,  herein  before  given 
and  bequt-athed  to  the  said  A.  T.  immc  diatdy  on  the  decease 
"  of  my  said  son  without  issue,  in  lieu  of  the  annuity  above 
"  mentioned;  and  in  case  my  said  son  should  die  before  he  at- 
"  tains  the  age  of  21   years  without  issue  lawfully  begotten  as 
''  aforesaid,  then  my  will  and  mind   is,  that  the  remainder  of 
"  my  per3(<aal  estate  hereby  intended  for  my  said  son  at  his 
"  own  disposal,  if  he  should  live  to  attain  the  age  of  21  years, 
"  shall  go  and  be  divided  amongst  my  said  brothers  and  sisters 
"  7vith  the  proceeds  of  my  real  estate^  as  is  herein  before  direct- 
"  ed  to   be  divided.''''    'I'he   testator   then   appointed    Archibald 
Toung  his  executor,  and  in  the  same  year  died  seised." 


548  CASKS  IN  THE  SUPUKIME  COURT 

1808.  "  John  Blcakkif  the  younger,  the  devisee  named  hi  the  said 

Lessee"  ^^^'^'  altenvards,  to  wit,  in  the  same  year,  entered  into  posses- 

of         sion  of  the  premises  therein  mentioned,  of  which  the  premises 

Smith     named  in  the  declaration  are  part,  and  held  and  enjoyed  the 

FoLWELL  ^^"^^'  ""^'^  ^^^^  ""^  ^'^^^  o{  September,  1802,  when  he  died  of  full 
age  and  without  issue,  after  having  duly  made  his  last  will  in 
writing,  bearing  date  the  19th  of  April,  1802,  and  ilKrchy  ap- 
pointed Joseph  Parker  Norris  his  executor."  (By  tliis  will  the 
testator  directed  his  real  and  personal  estate  to  be  sold,  and  the 
proceeds,  after  paying  legacies,  to  be  divided  among  certain 
of  his  relations  share  and  share  alike.) 

"  On  the  25th  day  of  May,  1803,  the  said  Joseph  Parker 
Norris,  executor  as  aforesaid,  in  consideration  of  7000  dolls, 
lawful  money  of  the  United  States,  to  him  paid  by  William  Fol- 
ivell,  the  defendant  in  this  action,  bargained  and  sold  the  said 
premises  to  the  said  William  Fohvell  and  his  heirs." 

"  The  following  legatees,  named  in  the  will  of  the  said  John 
Eleakley  the  elder,  and  who  were  next  of  kin  to  him,  as  well 
as  to  John  Eleakley  the  younger,  died  at  the  following  periods, 
that  is  to  say,  Sarah  Boyle  between  the  years  1760  and  1770, 
leaving  issue  who  are  still  alive;  William  Eleakley  in  the  year 
1775,  leaving  issue  who  are  still  alive;  David  Eleakley  in  the 
^  year  1790,  leaving  issue  who  are  still  alive;  and  Margaret 

Harkness  in  the  year  1794,  leaving  issue  who  are  still  alive." 

"  The  said  Archibald  Toung,  executor  of  the  will  of  the  said 
Jolvi  Eleakley  the  elder,  on  the  3d  of  May  1 782,  duly  made  and 
executed  his  last  will  in  writing;  and  thereof  appointed  Robert 
Correy  his  executor,  and  died  on  the  27th  of  May  in  the  same 
year,  without  having  disposed  of  the  premises  in  the  declara- 
tion mentioned." 

"  On  the  24th  of  April,  1797,  the  said  Robert  Correy  duly 
made  and  executed  his  last  will  in  writing,  and  thereof  ap- 
pointed Eleanor  Correy  and  James  Eoyde  executors,  and  after- 
wards died,  to  wit,  on  the  1st  day  of  June  1802,  without  having 
disposed  of  the  premises  in  the  declaration  mentioned." 

"  On  the  1st  day  of  February,  1805,  the  said  Eleanor  Cor- 
rey and  James  Eoyde,  executors  as  aforesaid,  for  a  valuable 
consideration  in  lawful  money  to  them  paid  by  James  Smith, 
the  lessor  of  the  plaintiff,  bargained  and  sold  to  him  and  his 
heirs  the  premises  in  the  declaration  mentioned.  The  said 
James  Smith,  at  the  time  of  the  said  purchase,  had  notice  of 


OF  PENNSYLVANIA.  549 

the   deaths    of  the   said  D.  Bleakley^  W.   Bleaklei/,  S.  Boijle,      1809. 
and   M.    Harkncss;  and  that    they  died  before  the  decease  o^  "Lessee" 
the  said  John  Blen/dcy  the  younger.  He  also  had  notice,  at         of 
the  time  of  his  said  purchase,  of  the  said  deed  by  Joseph  P.     Smith 
Norris  to  W.  Fohuell.'*''  p     ^'' 

"  If  on  these  facts  the  law  be  with  the  plaintiff,  then  judg- 
ment to  be  entered  for  him,  with  6  cents  damages,  and  6  cents 
costs;  hut  if  the  law  be  with  the  defendant,  judgment  to  be  en- 
tered for  him." 

The  case  was  argued  at  last  December  term  before  the 
whole  court. 

Dallas  for  the  plaintiff.  The  personal  representatives  of  the 
brothers  and  sisters  of  Bleakley  the  father,  are  entitled  to  the 
proceeds  of  the  real  estate;  and  not  the  devisees  of  Bleakleij 
the  son.  ^y  the  father's  will,  the  son  has  a  clear  estate  tail  in 
the  realty;  the  reversion  in  fee  descends  to  him,  subject  to 
a  power  in  Toung  and  his  executors  to  sell,  upon  his  dying 
without  issue  living  at  tiie  time  of  his  death;  and  by  this  sale, 
the  fee  is  transferred  to  the  vendee.  Lancaster  v.  Thornton  (a) 
and  Warneford  V.  Thompson  (Jb).  There  are  but  two  questions. 

1.  Whether  the  facts  establish  the  existence  of  a  power  to  sell. 

2.  Whether  there  is  any  object  for  the  exercise  of  the  power. 
1.  The  existence  of  the  power  depends  upon  two  circum- 
stances: the  son's  dying  witliout  issue  living  at  the  time  of  his 
death,  and  the  continuance  of  the  authority  up  to  the  time  of 
aale.  That  the  life  of  Archibald  Toung  is  not  essential  to  the 
raising  of  the  power,  is  evident  for  various  reasons:  he  is  a 
jnere  instrument;  his  death  is  provided  for  by  the  substitution 
of  his  representatives;  the  clause  which  commutes  the  annuity 
for  400/.,  makes  it  depend  upon  his  being  alive  at  the  death  of 
the  son  without  issue,  but  the  clause  which  directs  the  sale, 
makes  it  depend  sokly  upon  the  death  of  the  son  without  issue; 
the  brothers  and  sisters  are  the  second  object  of  the  testator's 
bounty,  and  to  make  a  power  for  their  benefit  hang  upon  the  life 
of  an  indifferent  person,  is  absurd.  Then  as  to  the  continuimcc 
of  the  authority:  The  direction  is  to  Toung^  his  executors  and 
administrators;  and  the  executors  of  the  executor  may  perform 
it.  Shop.  Touch.  404.  8  Vincr,  4G5.  pi.  3.  467.  pi.  16.  2 
Brownl.  19-1.  Kcihcay  4^.  Co.  Litt.  113.  a.  note  146.   Tenant 

U)  2  Bu>y.  lO.V.         ib)  i  Fcf.jr.  51'.. 
Vol.  I.  A-  A 


550  CASES  IN  THE  SUPREME  COURT 

1809.      ^"'  Broivu  {a).  There  can  be  no  objection  from  the  remoteness 
j^pgsgg     of  the  power.  The  sale  must  be  made  within  two  years  after 
of         the  son's  decease;  and  the  division  is  to  be  between  such  as 
Smith     ^^^  living  at.  the  decease;  tht-refore  the  power  is  to  arise  upon 
FoLWFLL   ^'^^  death  of  the  son  without  issue  living  at  the  time  of  his  death. 
2.   With  respect  to  the  objects  of  the  power,  the  material  in- 
quiry is  the  testator's  intention.  The  land  which  is  ordered  to 
be  sold  is  to  be  considered  as  money,  1  Fonbl.  414;  and  it  is  to 
be  divided  between  the  brothers  and  sisters,  or  such  of  them 
as  were  living  at  the  son's  death,  and  their  heirs.   Heirs  is 
not  of  necessity  a  word  of  limitation.  Bamjieldw.  Popham  (h). 
It  is  often  used  as  a  designation  of  the  person.  Biirchellv.  Dur- 
dant  (c).  The  intent  of  the  testator  being  the  principal  rule  for 
the  exposition  of  the  will,  he  is  excused  from  using  the  strict 
and  proper  terms  of  law;  it  is  enough,  if  he  has  suificiently  de- 
clared his  intent.    Heirs  is  not  necessarily  a  word  of  limitation 
here,  because  the  property  being  money,  an  absolute  estate 
passes  without  it:  a  principle  of  which  the  testator  was  aware, 
when  in  a  certain  event  he  devised  his  personalty  to  his  bro- 
thers and  sisters,  without  more.  It  must  be  used  therefore 
to  bring  in  the  issue,  who  are  generally  called  heirs,  and  not  to 
qualify  the  estate.  7'he  testator  could  never  have  intended  to 
make  the  sale  and  distribution  of  his  estate  depend  upon  his 
old  brothers  and  sisters  surviving  his  young  son;  the  event  was 
too  improbable.  But  it  is  reasonable  to  attribute  to  him  an 
affection  for  the   stock,  which,  upon  the  failure  of  his  own, 
he  wished   to   advance;  and   an    intention,  that  the  heirs  of 
such  as   should  be  dead,  that  is  their  issue,  should  take  per 
stirpes.  Construing  the  term  as  a  limitation,  his  object  as  to 
the  heirs  is  defeated;  treating  it  as  a  word  of  purchase,  and  a 
designation    of  the    legal  representatives,  the   whole  will    is 
supported;  and  this  result  is  a  sufficient  justification  for  laying 
aside  the  technical  meaning.  Darbiso7i  v.  Beaumont  (d).  The 
death  of  the  brothers  and  sisters  before  the  son,  is  therefore 
immaterial,  as  their  issue  were  living  at  the  son's  death,  to 
come  in  under  the  description  of  heirs.  But  granting  that  they 
must  take  in  the  quality  of  heirs,  we  contend  that  they  can 
take.  The  brothers  and  sisters  were  either  to  take  by  way  of 
executory  devise,  or  they  had  a  contingency  coupled  with  an 

(fl)  1  Chan.  Ca.  180.  (c)  2  Ventr  311 

(b)  1  P.  Wms  59.  id)  1  P.  IVms.  230- 


OF  PENNSYLVANIA.  551 

interest,  which  was  both  devisable  and  descendible.  As  an  ex-      1809. 
ccutory  devise,  Porter  v.  Brndleij  (a)  is  in  point,  that  although     L^ggg 
they  died  before  the  contingency,  their  children  take;  so  is  of 

Gurnell  v.  Wood  (Ji).  As  a  contingency  coupled  with  an  inte-  Smith 
rest,  the  right  of  their  representatives  is  clearly  supported  by  ^' 
King  V.  Withers  (c).  There  a  devise  was  of  2500/.  to  a  daugh- 
ter, at  21  or  marriage;  and  if  a  son  should  die  without  issue 
male  living  at  his  death,  she  was  to  have  3500/.  more  at  21  or 
marriage;  and  if  the  son's  death  did  not  happen  betore  21  or 
marriage,  she  was  to  have  the  money  whenever  it  did  happen. 
She  died  before  the  son,  who  afterwards  died  without  issue 
male;  and  her  administrator  took.  The  principle,  that  these  pos- 
sibilities coupled  with  an  interest,  descend,  and  may  be  devis- 
ed, has  been  settled  law  h'lncit  Sclwyn  v.  Selwyn  (d).  So  are 
Goring-  v.  Bieker^toffe^  {e)  Knight  v.  Knight^  (/)  Roe  v.  JoJies^ 
(g)  and  Perry  v.  Phillipa  (h).  All  that  is  necessary  is  that  there 
should  be  somebody  ready  to  take  when  the  contingency  occurs. 

Rarvle^  for  defendant,  made  three  points.  1.  That  the  will  con- 
tained a  clear  devise  of  all  the  realty  to  the  son  in  tail.  2.  That  a 
power  was  limited  to  arise  on  a  contingency,  depending  upon  the 
events,  firsts  of  John  Bleakley  the  son's  dying  without  issue 
living  at  the  time  of  his  death;  and  secondly^  of  the  brothers  and 
sisters,  or  some  of  them,  surviving  the  son  so  dying;  which  last 
event  not  happening,  the  power  never  arose.  3.  That  the  fee 
which  descended  to  the  son,  was  unulFtcted  by  the  power,  and 
passed  by  his  will  to  his  executor,  who  sold  to  the  defendant. 
The  first  point,  he  said,  was  incontrovertible;  and  the  third 
was  settled  by  the  second;  of  course  he  confined  himself  to  the 
second  point,  upon  which  he  argued  as  follows.  The  son  must 
die  without  issue  living  at  the  time  of  his  death,  Ijefore  the  es- 
tate goes  over;  and  when  it  does  go,  it  goes  to  the  brothers  and 
sisters  and  their  heirs,  or  such  of  them  as  are  living  at  the  son's 
death,  'ihe  first  question  is  as  to  the  meaning  of  the  word  heirs. 
The  general  rule,  that  it  is  a  word  of  limitation,  is  not  to  be 
questioned.  There  is  even  an  anxiety  in  courts  that  the  heirs 
shall  take   by  descent,  and  not  by  purchase,  as  appears  from 

C«;  .i  it  c'  A.  143.  U)  2  Burr.  1131.  (/,')  2  //.  lit.  30. 

(/')  WilUi,  211.  ((")  Pollexf.  32.  (/i)  1  Vet.  jr.  251. 

(c)  3  P  JVtru.  414.  (/)  Pol'/cxf.  44 


552  CASES  IN  THE  SUPREME  COURT 

1809.  Shelly'^s  caye  (fl),  Coulson  v.  Cotilson  (i),  and  Hodgson  v.  Am- 

1  ggj.  /^ro5e  (c).  In  i^re^/  v.  R'lgden  (^d)  rather  than  construe  heirs  to 

of  be  words  of  purchase,  the  devise  was  suffered  to  lapse.  If  a 

Smith  testator  uses  technical  words  only,  courts  are  bound  to  under- 

^     ^  ■         stand  them  in  a  lecral  sense;  if  he  connects  them  with  words 
FOLWELL.  ^^  .....  .,       „ 

which  shew  a  diiterent  meanmg,  his  intention  prevails.  But 

there  are  no  such  words  here.  What,  however,  are  the  conse- 
quences of  considering  the  term  as  a  description  of  the  person, 
and  allowing  the  heirs  to  take  by  purchase?  Manifestly, that  they 
cannot  take  per  stirpes^  which  is  argued  to  have  been  the  testa- 
tor's design.  Purchasers  must  take/»£'rca/?/?«;  and  then  if  one  bro- 
ther be  dead  leaving  nine  children,  they  will  take  three  fourths 
of  the  whole  estate,  and  the  surviving  brothers  and  sisters  one 
twelfth  each.  Was  this  the  intent  of  the  testator?  Clearly  not; 
the  division  is  to  be  share  and  share  alike.  There  is  no  alter- 
native then  but  to  consider  heirs,  not  as  a  description  of  the  per- 
son, but  as  a  word  of  limitation.  And  this  is  confirmed  by  the 
contingent  devise  of  the  personal  property,  which  is  to  be  divi- 
ded among  the  brothers  and  sisters^  rvith  the  proceeds  of  the 
real  estate^  as  before  directed;  and  to  which  the  issue  could  not 
make  a  pretension  upon  the  death  of  the  ancestor  before  the 
contingency.  It  is  confirmed  also  by  this,  that  if  it  is  a  word  of 
purchase,  it  does  not  qualify  the  estate  of  the  brothers  and  sis- 
ters; and  then  the  testator  must  have  intended  them  merely  a 
life  estate,  which  is  impossible.  Being  a  word  of  limitation,  if 
the  ancestor  took  nothing,  nothing  comes  to  the  heir,  Moor- 
house  V.  Wainhonse:  (e)  and  the  only  remaining  question  is, 
whether  the  ancestor  did  take  any  thing.  In  this  case  every 
thing  is  contingent:  the  person  to  take,  the  time,  and  the  quan- 
tity. A  division  is  ordered  among  such  as  shall  be  living  at 
the  death  of  the  son;  that  is,  such  of  the  brothers  and  sisters. 
Every  thing  depends  upon  that  contingency;  it  is  therefore  a 
bare  possibility  that  any  one  of  them  shall  take.  There  is  no  in- 
terest coupled  with  it,  to  devise  or  transmit;  for  every  thing  d«- 
pends  upon  the  party's  being  himself  mes^c.  This  distinguishes 
it  from  all  the  cases  read.  In  Porter  v.  Bradley^  there  was  no 
contingency  that  the  persons  who  were  to  take  should  be  alive 
at  the  death  of  the  first  devisee  without  issue.  There  was  a  ge- 
neral limitation  over  to  the  daughters  and  their  issue,  upon  the 

(a)  1  Rep.  98.  104.  (c)  Doug.  341.  ie)  1  W.  Bl.  638. 

( b)  Stra.  1125.  {d  )  PUvid.  345. 


OF  PENNSYLVANIA.  555 

death  of  the  son  without  issue  living  at  his  death;  and  no  col-  1809. 
lateral  event  was  required  to  exist  at  the  same  time.  So  was  j^^^^^^ 
GurJiell  V.  Wood^  Khig  v.  Withers^  and  the  rest.  of 

If  the  proceeds  are  personalty,  the  legacy  is  lapsed;  for  in  a  Smith 
devise  of  personal  property,  heirs,  and  heirs  of  the  body,  are  ^• 
rejected;  the  legatee  takes  absolutely,  and  his  executor,  not  his 
heir.  Leonard  Lovie's  case  (a),  Robinson  v.  Fitzherbert  (^), 
Webb  V.  Webb  (c).  If  the  devise  had  been  to  the  brothers  and 
sisters  and  their  executors,  or  such  of  them  as  should  be  living, 
&c.  where  would  have  been  the  doubt? 

There  being  no  person  entitled  to  receive  the  proceeds,  no 
sale  can  be  made  against  the  interest  of  the  heir  at  law,  for 
whom  equity  will  restrain  the  trustee,  Bradley  v.  Poxvell  (</), 
Yates  V.  Phettiplace  (e),  Tournayv.  Tournay  (/),  Roper  v. 
Raddiffe  (g),  Croft  v.  Lee  {h).  The  object  ceasing,  the  power 
ceases;  and  the  purchaser  from  the  trustee  with  notice,  like  the 
lessor  of  the  plaintiff,  becomes  himself  trustee  for  the  cestui  que 
trust,  or  in  this  case,  for  the  devisees  and  vendees  under  the 
son's  will.    Saunders  v.  Dehexv  (i  ),  Mansell  v.  ManseU{k). 

Tilghman  on  the  same  side.  The  heir  is  the  favourite  of  the 
law  of  England,  and  not  to  be  disinherited  but  by  express 
words,  or  necessary  implication.  He  should  be  still  a  greater 
favourite  here,  where  all  the  children  make  but  one  heir,  and  in 
this  case,  where  the  son  was  totus  hares.  It  is  agreed  he  took 
an  estate  tail  by  devise,  and  the  fee  by  descent;  he  must  there- 
fore have  a  right  to  dispose  of  the  fee  by  will,  unless  prevented 
by  the  plain  and  legal  intent  of  the  father.  It  is  said  he  is  pre- 
vented by  a  sale  under  a  power  in  the  father's  will;  and  the 
only  questions  are,  1.  Whether  such  a  power  ever  existed.  2. 
Whether  there  ever  existed  any  objects  for  the  exercise  of  it. 

1.  If  the  power  is  to  arise  after  an  indefinite  failure  ot  the 
son's  issue,  it  is  too  remote.  If  no  time  is  fixed,  it  is  bad,  for 
uncertainty.  If  any  time  is  fixed,  I  submit,  that  it  is  the  death 
of  Bleakley  the  son  without  issue,  living  Archibald  Toung. 
Toung  was  to  have  the  annuity  of  30/.  as  long  as  he  and  the 

(rt)  10  Jii-p.  87.  (e)  2  Vern.  416.  (/)  2  Veni.  271. 

(b)  2  Bro.  C.  C.  127.  (/)  Prec.  Chan.  290.     {i)  2  P.  fVms.  681 

(c)  1  P.  WiM.  132.  (aO  9  Mod.  171. 
:'l)C'it.  Tatb.  19.3.  {h)  4  Vi-.^.jr.  GO. 


V. 
FOLAVELL 


554  CASES  IN  THE  SUPREME  COURT 

1809.      *°"»  °''  ^^  '^"^  *^^  son's  issue  lived;  but  if  the  son  died  without 

'  issue  in  the  lifetime  of  7'oune.  he  was  to  have  400/.  out  of  the 

L#essee  ^ 

of         proceeds  of  the  real  estate,  and  before  any  dividend  was  made. 

Smith  This  shews  that  the  real  estate  was  to  be  sold  only  in  a  case  in 
which  Toimg  was  to  have  400/.  Further;  by  the  first  part  of 
the  will,  the  gross  sum  is  to  be  paid  upon  the  son's  dying  with- 
out issue  in  the  life  of  ToKng;  and  by  the  latter  part,  the  sale  is 
directed  upon  the  death  of  the  son  without  ftuch  issue^  that  is, 
in  the  life  of  2'oimg.  I  agree  that  his  executors  and  adminis- 
trators were  to  sell,  provided  the  power  arose  by  his  surviving 
the  son,  and  dying  bfforc  the  two  years;  and  hence  their  in- 
troduction. The  testator  might  have  supposed  that  the  son 
would  come  of  age  in  Toimg's  life,  and  that  if  he  outlived 
Toung^  he  would  do  what  was  right  himself;  therefore  the  life 
of  Toung^  however  immaterial  per  se^  was  not  so  in  connexion 
with  the  son's  life,  but  was  likely  to  be  a  proper  circumstance 
by  which  to  limit  the  raising  of  the  power.  The  disposition  of 
the  personalty  shews  that  the  testator  considered  Toung  as  sur- 
viving. The  son  was  to  have  it  on  attaining  21;  but  it  was  to 
be  divided  with  the  real  estate,  if  the  son  died  before  21  with- 
out issue  lawfully  begotten  as  ajoreaaid^  that  is,  living  Toung. 
No  one  can  have  the  proceeds  until  Toung'' s  400/.  are  paid;  it 
is  a  compensation  for  his  trouble  in  selling  and  remitting;  there 
can  be  no  sale  without  it.  Was  it  the  testator's  intention  to 
prevent  the  son  from  alienating  during  his  whole  life  after 
Toung''s  death?  It  cannot  be.  But  it  might  be  proper  to  re- 
strain him  during  the  probable  period  of  Toung''s  life;  and 
therefore  that  life  is  essential  to  the  power. 

2.  If  the  power  arose,  was  there  any  object  in  whose  favour 
it  could  be  legally  or  equitably  executed?  It  is  agreed  that  the 
whole  was  contingent.  Whoever  was  to  take  was  to  be  alive 
at  the  son's  death.  We  say  brothers  and  sisters;  they  say,  and 
the  children  of  such  as  were  dead.  As  to  their  being  purcha- 
sers and  taking  per  stirpes^  Mr.  Rawle^s  argument  is  conclu- 
sive; and  yet  it  is  clear  they  cannot  take  in  any  other  way;  there- 
fore they  cannot  take  at  all.  Such  of  them  cannot  mean  of  the 
heirs,  but  of  the  brothers  and  sisters;  otherwise,  there  is  a 
double  contingency,  which  is  bad.  The  event  is  clearly  doubt- 
ful. If  heirs  are  meant,  the  persons  are  doubtful  also;  and  then 
there  is  one  contingency  upon  another.  1  Fearne  378.  Heirs 


eF  PENNSYLVANIA.  555 

cannot  take  by  purchase  unless  there  is  descriptio  personcr;  this      1809. 
rule  is  unquestionable.  Now  suppose  the  brothers  and  sisters     ;:  " 

had  died  in  the  life  of  the  testator;  it  cannot  be  argued  that         Qf 
their  children  would  take;  but  there  is  no  reason  against  it,     Smith 
except  that  they  would  derive  nothing  from  their  ancestors;         '^'• 
and  this  is  conclusive  to  shew  there  is  no  descriptio  personae,    ° 

As  to  the  power  of  the  executor  to  sell,  the  general  princi- 
ple is  plain.  But  at  law,  th^  executor  derives  merely  from  his 
testator.  Young  never  had  authority  to  sell,  as  he  died  before 
the  son;  and  therefore  his  executor  derived  at  law  no  power 
from  him.  Then,  though  equity  might  order  an  execution  of 
the  power  by  Toung's  executor,  or  even  by  the  heir,  it  will 
never  do  it,  where  nobody  is  entitled  to  the  proceeds,  and 
there  is  a  bona  fide  purchaser  from  the  heir.  The  sale  under 
Tciung's  will  is  therefore  bad  both  in  law  and  equity. 

Lewis  in  reply.  \i  Bleakley  the  son  did  not  die  in  the  life  of 
7'oung,  there  was  no  reason  for  Toung^s  having  the  400/.;  and 
therefore  when  his  compensation  is  spoken  of,  the  testator 
gives  it  only  in  case  of  his  son's  death  without  issue  "  in  the 
"  lifetime  of  the  said  Archibald  Toung;^^  but  when  the  devise 
is  made  to  the  brothers  and  sisters,  Toung^s  life  is  not  requi- 
red, but  the  duty  is  to  l)e  performed  by  him  or  his  representa- 
tives. Neither  is  any  thing  said  of  his  survivorship  in  the  de- 
vise of  the  personalty.  His  life  therefore  is  not  essential  to  the 
power.  Ifitis,  two  consequences  follow,  which  are  quite  impro- 
bable: first,  that  the  testator  intended  to  benefit  his  brothers  only 
in  the  event  of  a  stranger's  death;  and  secondly,  that  if  Toting 
died  before  the  son,  and  the  son  died  afterwards  under  age  and 
without  issue,  nothing  was  intended  to  pass  under  the  will,  but 
the  heir  at  law  was  to  take  the  whole.  I  contend  that  the  death 
of  the  son  without  issue,  is  all  that  is  necessary  to  raise  the 
power;  and  that  the  land  is  to  be  sold  absolutely  upon  that  event, 
withfjut  regard  to  any  other.  Whoever  mav  own  the  proceeds, 
the  lessor  of  the  plaintiff  owns  the  land.  The  sale  is  to  be  made 
within  two  years  after  the  son's  death  without  issue.  Of  course 
the  failure  of  issue  is  referible  to  that  time.  Under  what  cir 
cumstances  is  it  to  be  made?  As  to  Toung^  his  life  was  immate- 
rial; he  was  a  mere  instrument.  It  is  said  his  executors  are 
substituted,  because  he  might  survive  the  son,  and  die  before 


556  CASES  IN  THE  SUPREME  COURT 

1809.      the  sale.  But  in  such  an  event  the  substitution  would  be  use- 
Lessee     '«^ss;  equity  would  make  it  for  the  testator,  the  power  having 
of        arisen.  The  only  design  of  the  substitution  was  to  provide  for 
Smith     ^Yi^  power  in  the  event  that  has  happened:  a  dying  before  the 
FoLwELL.  ^^^'  ^^  *°  ^'^^  brothers  and  sisters,  the  direction  to  sell  is  dis- 
tinct from  the  division  between  them  and  their  heirs:  the  one  is 
peremptory,  the  other  is  conditional.  It  does  not  follow  because 
the  property  is  sold,  that  the  proceeds  must  go  to  them.  The 
testator  did  a  discreet  thing  in  merely  changing  the  propertv, 
and  permitting  the  law  to  distribute.  Had  he  stopt  at  the  order 
to  sell,  there  could  have  been  no  doubt;  and  in  effect  he  has 
stopt  there;  for  he  does  not  couple  the  order  with  the  distri- 
bution, by  saying  that  for  the  purpose  of  dividing  he  directs 
the  sale,  or  to  the  intent,  or  in  order  to,  divide;  but  there  are 
two  distinct  and  independent  orders,  one  to  sell,  and  the  other 
to  divide.   But  supposing  objects  of  sale  to  be  necessary,  we 
say  they  exist.  One  question  on  this  part  of  the  case  is,  whether 
the  children  take  by  descent   or  purchase.    I   agree  the   ge- 
neral rule;  but  heirs  certainly  may  be  a  word  of  purchase,  if  it 
5s  so  intended.  The  brothers  and  sisters  were  advanced  in  life 
when  old  Bleakley  made  his  will;  the  son  was  young;   and 
therefore  there  was  a  probability  of  their  death  before  his;  in 
which  event  it  was  his  desire  that  their  children  should  take, 
and  hence  the  word  heirs.  The  effect  of  the  term  is  to  be  limited 
according  to  his  intent;  he  did  not  know   the  legal  meaning  of 
descent  or  purchase;  his  design  was  that  the  children  should 
stand  in  loco  parentis  throughout.   I  see  the  difficulty  of  their 
taking  by  purchase,  where  one  brother  is  dead  leaving  chil- 
dren; but  it  is  obviated  by  assigning  to  him  the   intention, 
not  that  they  should  take  technically  either  by    descent   or 
purchase,  but  that  they  should  stand  exactly  as  their  parent 
would  have  stood.   But  if  this  will  not  hold,  then  the  authori- 
ties of  Mr.  Dallas  do  shew  that  a  contingent  executory  inter- 
est commenced  in  the  brothers  and  sisters,  which  was  trans- 
mitted to  the  children,  and  became  consummate  in  them  upon 
the  son's  death  without  issue.  It  is  exactly  the  case  of  Pin- 
bury  x.Elkin:  {a)  where  one  made  his  wife  executrix,  and  gave 
her  all  his  goods  and  chattels,  provided  she  died  without  issue 

1  P.  Wmi.  5CX 


OF  PENNSYLVANIA.  '  557 

by  the  testator,  in  which  event  after  her  decease,  80/.  was  to      1809. 

remain  to  A.;  A.  died  before  the  testator's  wife,  and  his  repre-     T  ' 

....  Lessee 

sentatives  took.  So  a  devise  to  A.  and  his  heirs,  and  if  he  dies         of 

before  21,  to  B.  and  his  heirs.   A.  dies  before  21,  and  B.  dies     Smith 

before  him;  B.'s  heirs  take.    8  Fine?-  112.  p/.  38.  377.  pL  11. 

2  rentr.  347. 

Cur.  adv.  viilt. 

Upon  this  day  the  judges  delivered  their  opinions. 

TiLGHMAN  C.  J.  The  question  in  this  case  arises  on  the 
will  oi  John  Bleaklcij  the  elder,  and  is  to  be  resolved  by  ascer- 
taining what  the  contingency  was,  on  which  the  testator  autho- 
rized his  executor  to  sell  his  real  estate,  and  divide  the  proceeds 
among  his  brothers  and  sisters.  If  that  contingency  has  taken 
effect,  the  plaintiff  will  be  entitled  to  recover,  because  there  is 
no  doubt,  that  the  power  to  sell  is  extended  to  the  executors  of 
the  original  executor;  nor  is  it  in  its  nature  more  remote  than 
the  law  permits,  being  to  take  effect  on  the  expiration  of  a  life 
then  in  existence.  But  if  the  contingency  has  not  taken  effect, 
the  plaintiff  has  no  title. 

The  objects  of  the  testator's  bounty  appear  to  have  been  his 
son,  his  brothers  and  sisters,  and  his  cousin  Archibald  Toutig^ 
whom  he  made  his  executor.  In  the  first  part  of  his  will  he 
gives  a  small  legacy  to  each  of  his  brothers  and  sisters;  and  to 
Archibald  Young  an  annuity  of  thirty  pounds,  Pennsyhania 
currency,  to  be  paid  out  of  the  profits  of  his  real  estate  "  during 
"  \\\c  joint  lives  of  the  said  Archibald  To ung^  and  his  son  John 
"  Blcakkif^  or  his  heirs  larvjulhj  begotten;  but  in  case  of  the  de- 
''  cease  of  his  said  son  without  issue  lawfullv  begotten  as  aforc- 
"  satd^  in  tiie  lifetime  of  the  said  Archibald  Toung,  then  the 
'^'  annuity  was  to  cease,  and  in  lieu  of  it,  Archibald  Toung  was 
"  to  have  4CXJ/.  sterling,  payable  out  of  the  proceeds  of  the  tes- 
"  tator's  real  estate,  when  die  same  was  sold  and  disposed  of  as 
"  was  afterwards  in  the  said  will  directed."  If  we  pause  here, 
we  find  the  testator's  intention  very  clearly  expressed,  that  his 
real  estate  was  to  be  sold,  in  case  his  son  died  without  issue 
during  the  life  of  Archibald  Toting;  or  in  case  he  left  issue,  and 
that  issue  should  die  without  issue  during  the  life  of  Archibald 
Toung.  I  am  liy  no  means  satisfied  that  this  inti-ntion  was  not 
preserved  throughout  the  v.ill,  although  in  a  subsequent  part. 
Vol.  I.  4B 


X'. 
fOLWELL 


558  CASES  IN  THE  SUPREME  COURT 

1809.  ^vhich  I  will  next  consider,  there  are  expressions  not  strictly 
Z  ;  reconcilable  with  it;  and  which  aflford  strong  ground  for  arguing 
of  that  the  testator  designed  that  his  real  estate  should  be  sold,  in 
Smith  case  his  son  should  die  without  leaving  issue  livDig^  at  the  time 
of  his  death,  without  regard  to  the  life  o{  Archibald  7'oung.  His 
words  are  as  follow.  "  All  the  rest  and  residue  of  my  estate, 
"  real  and  personal,  I  give,  devise,  and  bequeath  to  my  son 
"  ychn  Bleakley,  and  his  heirs  lawfully  begotten;  and  in  case  of 
*'  the  decease  of  my  said  son  without  such  issue,  then  I  do 
"  direct  and  order  my  said  cousin,  Archibald  7'oung,  his  execii- 
"  tors  or  administrators,  to  sell  and  dispose  of  my  real  estate, 
*'  within  two  years  after  the  decease  of  my  said  son,  to  the  best 
*'  advantage.  And  I  do  hereby  give  and  bequeath  the  proceeds 
*'  thereof  to  m)''  said  brothers,  David  and  IVilliam  Bleaklcy,  and 
"  my  said  sisters,  Margaret  Harkness  and  Sarah  Boyle,  and 
*'  their  heirs  for  ever,  or  such  of  them  as  shall  be  living  at  the 
"  decease  of  my  said  son,  to  be  divided  between  them  in  equal  pro- 
*■'■  portions,  share  and  share  alike,  after  deducting  the  sum  of 
*'  400/.  sterling,  herein  before  given  to  the  said  Archibald 
"  Toung,  immediately  on  the  decease  of  my  said  son  without 
"  issue,  in  lieu  of  the  annuity  above  mentioned."  Here  is,  to 
be  sure,  an  express  power  to  sell,  given  to  the  executors  of  Ar- 
chibald Toung;  but  that  power  might  be  necessary  at  all  events, 
because  Archibald  Toung  might  survive  the  testator's  son,  and 
die  within  the  two  years,  during  which  the  sale  was  to  be  made, 
without  having  completed  the  sale.  But  as  my  opinion  on  this 
case  will  be  founded  on  another  point,  I  decline  giving  any 
opinion,  whether,  on  the  whole  of  the  will,  the  power  to  sell 
was  intended  to  be  restricted  to  the  event  of  John  Bleakley,  the 
son,  dying  without  issue  in  the  life  of  Archibald  Toung.  I  do  not 
consider  this  point  as  bv  any  means  clear;  and  if  the  case  rested 
solely  upon  it,  I  should  feel  myself  inclined  to  give  as  much 
weight  to  the  direction  to  the  executors  of  Archibald  Toung  to 
sell,  as  it  would  reasonably  bear;  because  it  would  tend  to  fa- 
vour the  brothers  and  sisters  of  the  testator,  who,  next  to  his 
son,  were  the  objects  of  his  affection. 

Supposing  then,  that  the  authority  to  sell  was  to  arise  on  the 
event  of  the  son's  dying,  without  issue  living  at  the  time  of  his 
death,  it  remains  to  be  considered  for  what  purpose  the  sale  was 
to  be  made.  The  literal  exprcfsion  is,  that  the  proceeds  shall  be 
equally  divided  between  the  testator's  brothers  and  sisters  and 


OF  PENNSYLVANIA,  559 

their  heirs,  or  such  of  them  as  should  be  living  at  the  time  of     1809- 
his  son's  death.   But  none  of  them  were  living  at  that  time.     Lgssgg 
Therefore,  to  follow  the  literal  expression,  there  were  no  per-         of 
sons  in  existence,  in  whose  favour  the  power  to  sell  could  be     Smith 
exercised.  It  appears  to  me,  that  the  literal  interpretation  ac-  Pqlwell. 
cords  with  the  spirit  and  intent  of  the  testator.   For,  although 
it  might  be  reasonable  to  restrain  the  son  fi-om  making  any 
disposition  of  the  real  estate,  to  the  prejudice  of  the  testator's 
brothers  and  sisters,  who  were  naturally  dear  to  him,  yet  it 
would  be  hard  to  impose  such  a  restriction  merely  to  secure 
the  estate  to  nephews  and  nieces  living  in  a  remote  country. 

It  is  contended  by  the  counsel  for  the  plaintiff,  that  the  word 
heirs  may  be  taken  as  a  word  of  purchase;  and  that,  by  virtue 
of  it,  the  heirs  of  the  deceased  brothers  and  sisters  may  take. 
There  is  no   doubt  but  the  word  heirs  may  be  so  construed, 
when  it  appears  that  the  testator  used  it  with  a  view  o{  desig- 
nating' a  particular  person.  But  is  it  so  used  in  this  will?  I  think 
not.   It  is  intended  to  have  the  effect  of  giving  the  property 
completelij  to  the  brothers  and  sisters,  who  were  to  take.  It  is 
not  an  accurate  expression;  because  it  is  applied  to /?i';-*072a/ 
property,  to  moncy^  which  does  not  go  to  heirs  but  to  execu- 
tors. However,  it  is  very  commonl)'  used  in  wills,  to  denote  an 
intent  that  the  legatee  shall  have  the  absolute  property  in  money. 
To  construe  the  word  heirs  otherwise  than  as  a  word  of  limita- 
tion in  this  will,  would  introduce  a  confusion  never  intended 
by  the  testator.   It  was  his  intent  that  the  persons  who  took, 
should  take  in  equal  portions.    Now  suppose  that  one  of  the 
brothers  had  died^  leaving  several  children;  and  the  others  had 
been  all  living  at  the  death  of  John  Bleakley^  the  son.   Would 
each  child  of  the  deceased  brother  have  taken  an  equal  share 
with  the  surviving  brothers  and  sisters?  This  is  so  monstrous, 
that  the  plainlifl't.  counsel  do  not  contend  lor  it.   They  say, 
that  all  the  children  of  the  deceased  should  take  among  them 
the  share  tiiat  their   parent  would  have  been   eniitleti  to,  if 
living.  This  certainly  would  be  very  equitable;  but   wiiere  do 
we  find  it  in  the  will?   It  is  making  the  will,  not  construing  it. 
I  am  satisfied  that  the  testator,  when  he  gave  the  direction  to 
sell,  did  not  look  beyond  the  lives  of  his  brothers  and  sisters; 
and  if  this  construction  was  not  sufficiently  clear  from  the 
parts  of  the  will  which  I  have  mentioned,   it  h  confirmed  by  a 
•ubsequcnt  clause,  in  which  he  dirrrf^,  that,  in  rase  his  son 


560  CASES  IN  THE  SUPREME  COURT       , 

1809.      ^^'^s  witliout  issue,  before  the  age  of  twenty-one  years,  the 

Lessee     remainder  of  his  personal  estate  (intended  to  be  at  his  son's 

of         disposal  if  he  attained  the  age  of  twenty-one)  shall  go  to,  and 

Smith     be  divided  between,  his  brothers  and  sisters^  with  the  proceeds 

Vnx  wvr      °^  ^'^  '"^"^^  estate,  as  before  directed. 

The  plaintiff's  counsel  made  another  point,  which  it  is  ne- 
cessary to  mention;  that  is,  that  it  was  the  intent  of  the  testator 
that  his  real  estate  should  be  sold  at  all  events,  in  case  of  his 
son's  death  without  issue.  But  to  this  I  cannot  agree.  It  is 
true,  that  to  sell  is  one  thing,  and  to  dispose  ofih^  proceeds  of 
the  sale  is  another;  but  to  what  purpose  is  the  sale  to  be  made, 
if  there  is  no  person  in  existence  to  receive  the  proceeds?  The 
cause  of  the  sale  ceasing,  the  authority  to  sell  must  cease  like- 
wise. 

Upon  the  whole  of  this  case,  my  opinion  is,  that  the  contin- 
gency, on  which  the  power  to  sell  was  to  arise,  has  never  taken 
effect,  and  therefore  the  sale  under  which  the  plaintiff  claims, 
was  without  authority.  Of  consequence  he  has  no  title,  and 
judgment  must  be  entered  for  the  defendant. 

Yeates  J.  delivered  his  opinion  at  large  in  concurrence 
with  the  Chief  Justice,  upon  all  the  points.  On  the  first  point 
however,  whether  the  power  to  sell  did  not  depend  upon  the 
death  of  the  son  in  the  life  time  oi  Archibald  Toung'^  his  Hon- 
our said,  that  as  the  claim  to  the  400/.  was  made  in  positive 
terms  to  depend  upon  the  son's  d\ing  without  issue  in  the  life- 
time of  Toiing,  and  as  the  4001.  was  to  be  paid  before  any  di- 
vidend of  the  proceeds  of  sale,  in  his  mind  it  irresistibly  fol- 
lowed, that  as  the  son  survived  Toung^  the  legacy  did  not 
arise,  and  the  lands  could  not  be  sold. 

Brackenridge  J.  In  this  case  the  annuity  payable  to  Ar- 
chibald Toung,  "  diuing  the  joint  lives  of  him  the  said  Archi- 
'■'-bald  Toung^  and  the  son  John  BleakJeij^  or  his  heirs  lawfully 
"begotten,"  ceases  on  the  death  of  Archibald  Toung^  who  died 
before  John  Blcakley  die  younger.  But  the  400/.  is  a  birqui  st  to 
depend  on  theson  yoA;z^/(Y//^/«/'.s- dying  without  issue.  For  it  is 
stated  to  be  to  him  "  the  said  Archibald  Toung^  and  his  assigns;" 
and  executors  and  administrators  are  assigns  in  law.  It  is  further 
stated  to  be  "  to  my  said  cousin  Arclubald  Toung^  not  onb.  for 
"  the  natural  affection  I  have  and  bear  to  him  as  a  relation, 


OF  PENNSYLVANIA.  561 

"  but  also  as  a  full  compensation  for  the  services  he  has  already      1809. 

"  rendered  me,  and  in  lieu  of  his  commission  for  the  trouble     ~ 

.  ...  Lessee 

*'  he  ma)  hereafter  have  in  the  execution  of  this  my  will;"  and         Qf 

it  was  in  the  contemplation  of  the  testator,  that  Archibald  Toung-     Smith 

micrht  not  himself"  live  to  execute  the  will,  since  he  continues  the  ^     ^'' 

1-  .  1  1  r  •  I  11  L  1    FOLWF.LI.. 

direction  and  order  oi  executing  the  will,  to  the  executors  and 
administrators  of  Archibald  7'oiing.  There  was  therefore  the 
same  reason  that  this  400/.  should  come  to  the  representatives 
oi  Archibald  I'oung^  his  executors  or  administrators  rendering 
the  service,  as  there  was  originally  that  it  should  come  to  him- 
self. And  though  "  in  lieu  of  his  commission  for  the  trouble 
"  he  may  hereafter  have  in  the  execution  of  the  will"  is  stated 
as  an  inducement  of  the  bequest  or  legacy,  yet  "  natural  affec- 
"  tion  and  a  compensation  for  services  he  has  already  render- 
"  ed,"  is  also  an  inducement;  and  there  would  be  an  object  of 
sale  for  the  raising  this  legacy  if  no  other  did  exist.  For  though 
the  legacy  of  400/.  is  stated  to  be  given  in  lieu  of  the  annuity, 
yet  it  is  not  a  commutation,  but  a  substitution;  and  the  termi- 
nation of  the  annuity  is  marked  as  the  commencement  of  this 
other  provision:  that  is,  it  is  as  much  payable  as  if  no  annuity 
had  preceded  it;  and  although  it  is  "  in  case  of  the  decease  of 
"  my  said  son  without  issue  lawfully  begotten  in  the  lifetime 
"  of  Archibald  T'owig^^''  that  the  annuity  is  to  cease,  yet  the 
power  is  continued  to  the  executors  and  administrators  for  the 
purpose  of  the  sale.  Archibald  I'cung-  dying  before  sale,  yet  sale 
can  be  made  by  his  executors  or  administrators,  the  400/. 
will  be  pa\  able,  and  the  dying  before  the  son  can  have  no  effect 
but  as  it  limits  the  antiuity.  This  object  therefore  of  the  sale  of 
the  property,  and  the  distribution  arising  on  the  sale,  did  not 
cease  by  the  death  oH  Archibald  2'oung-hciovc  the  death  oi  Jofvi 
Bleakletj  the  son. 

But  taking  it,  that  the  contingency  of  yohn  Blcaklcij  the 
son  dying  in  the  lifetime  of  Archibald  Toung'  not  happen- 
ing, the  bequest  of  400/.  is  not  claimable  ijy  his  representa- 
tives, vet  tlie  main  object  of  the  sale  in  case  of  Blcaklcij  the 
son  dving  without  issue,  was  for  the  use  of  the  devise  over 
of  the  prf)cceds  of  the  estate:  "  I  do  hereby  give  and  bequeatli 
"  the  prow^tds  there'll';"  and  there  was  a  reason  for  a  devise  of 
the  proceeds  rather  than  of  an  undivided  interest  in  the  realty 
itself,  because  it  superseded  the  expense  and  trouble  of  parti- 
tion. Thai  the  estate  in  John  Blcakley  the  son,  determined  on 
flying  without  issue,  is  clear;  and  that  the  remainder  over  in  fee 


562  CASES  LN  THE  SUPREME  COURT 

1809.      vested  in  the  trustee  Archibald  Toiuig;  or  his  executor  or  ad- 

ministrator,  for  the  purpose  of  sale,  is  also  evident.  For  had 
LrtCsscc 

^f         even    the  authority  been  naked,  and  not  coupled  with  ^n  inte- 

Smith  rtst,  yet  by  act  of  assembly,  3  St.  Laws-  200.  "  w  hen  by  the  last 
^■-         *•'  will  and   testament  of  a  decedent,  a  naked  authority  only  to 

•OLWELL.  u  sell  lands  shall  be  given  to  executors,  they  shall  take  and  hold 
"  the  same  interest  in  such  lands,  and  have  the  same  powers 
"  and  authorities  respecting  the  same,  as  if  the  lands  were  de- 
"  vised  to  them  to  be  sold."  Nor  does  the  main  object  of  the 
sale  cease  on  the  brothers  and  sisters  or  either  of  them  dying 
before  yo/in  Blcakleij  the  son,  provided  the  brothers  and  sisters 
or  either  of  them  left  children.  For  the  devise  of  the  proceeds 
is  to  "  brothers  and  sisters,  and  their  heirs,  or  such  of  thou 
"as  shall  be  living  at  the  decease  of  my  said  son,"  to  be  divi- 
ded between  them  in  equal  proportions,  share  and  share  alike. 
To  whom?  To  brothers  and  sisters,  or  to  heirs  of  brothers  and 
sisters,  who  shall  be  living  at  the  decease.  By  the  word  heirs,  I 
understand  children.  What  use  of  the  word  heirs,  if  children 
were  not  meant?  For  the  proceeds  on  a  sale  going  to  a  brother 
or  sister,  being  personal  estate,  would  give  them  the  absolute 
interest,  without  the  word  heirs.  And  by  the  word  heirs,  I  take 
to  be  meant  children,  because  in  the  language  of  the  people  it 
means  children,  and  it  is  in  this  language  that  the  will  is  writ- 
ten. The  popular  meaning  ought  not  to  be  set  aside  for  a 
technical  sense  that  defeats  the  general  intention,  which 
seems  to  have  been  that  the  estate  should  go  over  to  brothers 
;md  sisters,  and  their  issue.  It  is  on  the  death  of  John  Bleak- 
ley  the  son,  and  of  the  brothers  and  sisters,  that  the  proceeds 
come  immediately  to  the  children.  But  coming  to  them  as 
the  children  of  brothers  and  sisters,  they  take,  as  one  person, 
that  share  which  would  have  come  to  those  whom  they  repre- 
:  c-nt.  It  would  seem  absurd  to  devise  to  persons  and  their  heirs,  or 
such  of  them  as  should  be  living,  and,  in  construction,  to  confine 
ihelivingtothepersons  themselves,  who  must  cease  tolive  before 
there  can  be  heirs,  that  is  surviving  children.  Were  it  neces- 
sary to  derive  the  interest  through  the  stock,  we  might  be  em- 
barrassed with  the  law  of  descentj  but  the  children  of  the  stock 
are  the  immediate  takers,  the  stock  ceasing  to  exist.  The  de- 
vise is  to  brothers  and  sisters,  and  their  heirs.  It  cannot  mean 
licirs  general,  and  those  who  are  equally  the  heirs  uf  one  bro- 
ther and  sister  as  of  another,  but  the  heirs  of  each  brother  and 


OF  PENNSYLVANIA.  56S 

sister  severally:  that  is  to  the  children  of  each  the  share  of  the      1809. 
parent.  I  understand  it  to  be  as  much  as  to  say  that  the  parent     j  ^^ 
not  living,  the  child  or  children  shall  take,  or  offspring,  or  is-         ^f 
sue,  or  heir,  which  is  the  word  used.  The  extreme  case  strikes      Smith 
me  of  a  brother   or   sister  surviving  without  children,   and         ""' 
the  three  others  deceased  leaving  children;   in  which  case,  on 
the  opposite  construction,  the  brother  or  sister  without  a  child, 
would  take  the  whole,  and  the  children  of  the  deceased  nothing: 
which  would  seem  to  defeat  totally  all  use  of  the  Ti^&;r/ heirs. 

Mv  impression  upon  the  whole  of  this  will  is,  that  the  tes- 
tator meant  that  in  case  of  his  son  dying  without  issue  living  at 
the  time  of  his  death,  the  estate  should  go  over;  that  a  legacy 
should  go  to  Archibald  Toun;^^  or  his  representatives,  of  400/., 
and  the  remainder  to  brothers  and  sisters  of  the  testator,  or 
brothers'  and  sisters'  children,  but  a  sale  to  be  made  and  the 
proceeds  to  be  distributed;  and  that  Archibald  I'oiaig;  his  exe- 
cutors or  administrators  should  make  the  sale,  which  sale 
should  be  made  within  two  years  after  the  contingencyof  thcsou 
dying  without  issue.  Where  there  is  an  executor,  or  an  execu- 
tor of  an  executor,  as  in  this  case,  there  can  be  no  administra- 
tor; and  therefore  the  executor  of  the  executor  succeeds  to  the 
trust.  The  sale  has  been  made  by  the  executor,  and  it  is  good;  for 
it  is  a  principle  of  law,  that  no  execution  of  a  trust  shall  fail  for 
want  of  a  trustee;  and  a  court  of  chancery  in  England^  where  a 
trustee  fails,  will  appoint  a  trustee.  With  us  the  law  will  sanc- 
tion the  act  of  him  who  succeeds  to  the  management  ot  the 
affairs,  the  pursuit  of  the  rights,  and  the  discharge  of  the  du- 
ties of  the  deceased. 

The  testator  would  not  seem  directly  to  have  contemplated 
the  event  of  Archibald  Toting  dying  before  the  son;  but  he  has 
contemplated  the  dying  after  and  before  sale  made;  and  the 
provision  he  has  made  with  an  eye  to  that  event,  in  giving  pow- 
er to  executors  to  sell,  has  embraced  a  case  which  he  may  not 
have  had  immediately  in  view,  the  d)  ing  before  the  son.  For 
the  sale  by  executors  cannot  be  affected  l)y  the  dying  before;  nor 
do  I  think  the  right  to  the  legacy  ought  to  be  affected.  There  is 
nothing  in  it  but  that  the  annuity  ceased  sooner,  and  the  estate, 
in  the  hand  of  the  son,  has  been  ]}ro  tanto  relieved.  Being  how 
ever,  clear  as  to  the  intention  of  the  testator  in  regard  of  bro- 
thers and  sisters  and  their  children,  and  that  intention  having 
nothing  in  it  unnatural  or  harsh,  but  on  the  contrary  equal,  and 


5(54  CASES  IN  TilE  SUPREME  COURT 

1809.      to  be  approved,  I  am  not  disposed  to  yield  easily  to  objection^ 
Z  drawn  from  the  application  of  principles  of  an  artificial  system, 

of  What  rule  of  law  is  there  to  oppose  this  construction:  The 

Smith     son  took  an  estate  tail  by  implication.  The  dying  without  issue 
^'-  means  the  dying  without  issue  living  at  the  time  of  his  death. 

This  is  the  meaning  in  common  parlance,  and  it  is  sanctioned 
by  decisions.  There  is  therefore  no  indefinite  failure  of  issue, 
and  the  contingency  is  not  too  remote.  The  remainder  goes 
over.  The  children,  if  not  in  esse  at  the  time  of  the  devise,  take 
what  the  law  calls  an  executory  remainder.  They  take  on  two 
contingencies.  But  it  is  not  what  is  called  a  double  contingency; 
for  the  last  is  collateral  to  the  first,  connected  with  it,  and 
springing  out  of  it,  and  therefore  in  fact  but  a  single  contin- 
gency, the  children  of  a  certain  description  of  persons  taking 
on  the  son  dying  without  issue.  If  they  must  be  considered  as 
taking  the  real  estate,  they  take  it  immediately  under  the  devise, 
and  without  coming  through  the  stock,  but  take  the  interest 
the  stock  would  have  taken.  They  take  by  purchase;  and  un- 
der the  designation  of  heirs,  or  children,  the  heirs  of  each 
brother  and  sister  take  a  fourth.  That  heirs  may  be  constru- 
strued  children  cannot  be  disputed.  There  are  innumerable  au- 
thorities to  this.  On  the  contingency  happening,  the  fee  is  in 
the  persons  designated  according  to  their  proportions,  or  in  the 
trustee  for  their  use.  There  will  be  no  abeyance.  So  that  I  can 
see  nothing  in  the  way  of  taking  it  as  a  devise  of  real  estate,  or 
real  estate  reduced  to  personalty,  the  proceeds  to  be  divided. 
I  am  therefore  of  opinion  that  the  plaintiff  recover. 

Judgment  for  the  defendant. 


OF  PENNSYLVANIA.  565 

1809. 


Webb  and  A\ire  against  Isaac  Evans.  A^'rii'St 

^r^HIS  was  an  appeal  from  a  decision  of  the  Chief  Justice  A  testator 

-■-    at  a  circuit  court  for  Z-ancfl.??er  in  3Iai/ 1807.   JVchh  ^i^^hi^g  w^fe 'tlu- 
wife,  who  was  formerly  the  wife  of  Isaac  Evans  deceased,  de-iin|?lier  wi- 
manded  of  William  and  Isaac  Evans ^  (the  former  of  whom  dicd^^j^,,  front' 
after  action  brought)  the  reasonable  dower  of  the  wife  in  one  i;oi'n' i"  iiis 

1  11  111  r   1        I  farm  lioiisc, 

messuage,  one  barn,  and  three  hundrea  acres  oi   land  more  or.^^.^^l^,.  .^j^^j 
less,  as  of  the  endowment  of  the  said  Isaac  Evans,  her  late  hus-i-'i^  common 
band,  whereof  she  had  nothing.  The  defendant  pleaded,  1  st,  j^^- tchen 
a  devise  and  acceptance  by  the  widow  in  satisfaction  of  dow-«veii,  und 

^  .        r     r  •  1  1^1  1  T  1         draw  well; 

er;  2d,  a  forfeiture  by  v/aste;  and  3d,  a  release.  Issue  was  taken  jj^.  .^^^^^  ^\y(^s 
upon  all  the  pleas;  and  the  jury  found  generally  for  the  demand-  ''^r,  la  con- 

,    ,,  ,  ■     J-     .  r  •    1         1  •  sidcration  of 

ants,  200  dollars  damages.    Motions  tor  a  new  trial  and  in  'ir- 1,^.,.  sj.jj,,oi. 
rest  of  judgment  were  made  and  overruled,  and  the  defendant "\^''  -"^"^^  '^^'^'^^ 

,    "i  1  •  1-         1       I-  n        •  L-diicatini^ 

appealed  to  this  court  ror  the  lollowing  reasons:  tin-  ciniaren, 

1.  Because  the  devises  and  bequests   in  the   will  of  /saac  tlit- piolits  of 
Evans  deceased  to  his  widow,  were  inconsistent  with,  and  letttii  ids  sons 
no  fund  to  satisfy  the  claim  of  dower;  and  being  accepted  by ^""^^ of  ag-ft 

...  ,  .  I    •  r   1  "  »  to  possess  il. 

the  widow,  were  a  bar  to  her  claim  oi  dower.  jl^.  |^|,c.n  or- 

2.  Because  the  verdict  was  contrary  to   law;  the  jury  not'^^J"'* 'Y^'.""' 
having  found  that  the  husband  died  seised  of  any  and  what  into  two 
estate.  P-^'l^,  o!>e  of 

3.  Because  the  writ  demanded  dower  of  all  the  messuages jrives  to  one 
and  lands  of  Isaac  Evans  deceased,  though   the  demandants)*""' '■'■^^■"■- 

.  >  1        ,         1        ^".K  -^  l>i'ivi- 

held  part  thereof  under  the  devise  of  the  iormer  liusl)und  toK-^eof  water 
the  widow  during  her  widowhood;  which  excluded  her  from^'""^'"^^*;'**-'^ 

.  lJ:^'"t,  wliicli 

claiming  dower  in  the  sanie  during  life.  he  j^ivcs  to 

The  will  of  Isaac  Evans  was  dated  the  29th  November  1781,  """^''7  «"". 
and  contained  the  following  clauses,  which  alone  were  thought  respectively 
material  upon  the  appeal:    "  Imtirimis,  I  eive  and  bequeath  to*^'"'""-''^ ,"* 
"  my  beloved  wife,  one  bed  and  furniture  at  her  choice,  six  (Urs  the  son, 
"chairs,  one  armed  ditto,  one  case  of  drawers,  one  looking '''''^.^■^'l^*' ^ 

'  '  _      .  "partjciilHr 

"  glass,  the  whole  of  the  tea  furniture,  one  half  of  the  pewter,  part,  to  keep 

"one  hackney  creature  saddle  and  bridle,  and  one  cow,  her '' '""■\"-"  ■'.'"^ 

'  cow  fur  the 

choice.  I  likewise  give  to  my  said  wife  during  iier  widow- wife,  and  to 

cut  anil  lay 
fircwoodat  li'  r  .!-./,••   .h--:,.,-  i,/  :■  -.vldowhoud.  I/cLL  Ui^tlUie  dtvi»«g  to  tjic  wife  xre  not  in 
hjir  of  dower. 

Vol., J.  4  C 


WKnn 

7 


i,66  CASKS  IN  Tin:  SUPKKMi:  COURT 

1 809.  "  KooD,  the  front  room  of  the  house  xvherein  Inoxv  I'lve^  the  small 
"  cellar  under  the  kitchen^  with  libertij  of  the  commo?i  use  of  the 
"  kitchen^  oven^drazvwell^  and  springhoufie^  with  liberty  to  pass 
Evans.  "  '^^^^^  repass  to  and  from  every  of  the  same.  I  also  give  and 
"  bequeath  to  my  said  wife,  in  consideration  ofnv.K  schoolinc; 
"  AND  WELL  EDUCATING  niij  children,  all ciud  singular  the pro- 
'"''fts,  rents,  and  issues,ofall  my  lands  and  appurtenances  there- 
"  unto  belonging, from  the  time  of  ivy  decease,  until  my  sons  ar- 
"  rive  to  their  respective  ages  to  possess  them  as  hereinafter 
"  directed.''''  "  Item,  It  is  my  will,  that  my  son  William,  or  any 
"  other  person,  that  shall  enjoy  the  house  and  premises  that  I 
"  nozvlive  in  and  on,  shall  keep  for  my  said  wife  one  horse  crea- 
"  ture  and  OJie  cow,  in  good  order,  arid  likewise  provide  for  her 
^^  sufficient  of  good  firewood,  cut  at  a  proper  length  and  laid 
"  handy  to  her  door^  during  her  said  rvidowhood.^'  "  Item,  It 
"  is  my  will,  and  I  do  hereby  order  that  all  ?ny  land  be  d'lvided 
"  into  two  shares,  by  a  straight  line  across  the  whole,  so  as  to 
"  include  one  hundred  and  fifty  acres  and  allowance  to  the  up- 
"  per  or  south  share,  and  not  to  extend  further  northward  than 
"  the  southernmost  part  of  the  garden;  but  if  that  should  not 
"  include  the  aforesaid  number  of  acres,  I  order  that  so  much 
*'  of  my  woodland  on  the  west  side  adjoining,  and  by  a  paral- 
"  lei  line,  be  laid  off  to  the  south  share,  as  will  make  up 
"  the  aforesaid  one  hundred  and  fifty  acres  and  allowance." 
"  Item,  I  give  and  devise  to  my  son  Isaac,  when  he  arrives  to  the 
"  age  of  twenty-one  years,  all  the  aforesaid  south  share  of  land, 
"  together  with  all  and  singular  the  appurtenances  thereunto  be- 
"  longing,  to  him  his  heirs  and  assigns  forever,  reserving  a pri- 
"  vilege  of  water,  as  hereinafter  expressed^  "  Item,  I  give  and 
"  devise  to  my  son  William,  ivhen  he  arrives  to  the  age  of  twen- 
"  tif-vne  years,  all  the  residue  and  remainder  of  my  lands  and 
"  premises,  with  all  and  singular  the  buildings  and  appurtenan- 
"  ces  thereunto  belonging,  together  with  the  privilege  of  taking 
"  the  water  on  his  brother  Isaac's  land,  to  water  his  meadow, 
"  either  as  it  is  now  or  otherwise,  as  they  shall  agree,  together 
"  with  liberty  to  pass  and  repass,  and  keep  the  water  courses 
"  in  order,  doing  as  little  damage  as  the  nature  of  the  case  will 
"  admit  of;  to  him  his  heirs  and  assigns  forever."  "  Item,  I 
"  do  hereby  nominate  constitute  and  appoint  my  beloved  wife 
"  Ann,  whole  and  sole  executrix  to  this  my  last  will  and  testa- 
"  ment.  And  it  is  my  will,  that  she  take  all  my  personal  estate 


OF  PENNSYLVANIA.  567 

^- at  a  mode)  ate  value  and  appraisement^  to  be  made  as  soon      1809. 
*' as  conveniently  may  be  alter  my  decease,  pay  all  the  le-     y^^~^ 
-'  gacies  as  herein  directed^  and  if  it  shall  happen  upon  a  settle-         ■^,^ 
"  ment^  that  there  is  an  overplus  remaining  in  her  hands,  that    Evans. 
"  then  she  shall  divide  the  same  equally  to  and  amongst  all  my 
'•'  surviving-  children,  rvhen  the  youngest  shall  arrive  at  the  age 
*'  of  eighteen  years,  without  interest." 

The  testator  had  eight  children  at  the  time  he  made  his  will, 
and  at  his  death  in  1782:  three  sons  and  five  daughters.  Wil- 
liam arrived  at  21,  in  January  1787;  and  Isaac  in  August  1796. 
John,  the  third  son,  to  whom  he  gave  250/.  to  be  paid  when  he 
should  arrive  at  21,  came  of  age  in  March  1791.  To  Mary  and 
Hannah  he  gave  150/.  each,  payable  in  a  year  after  his  death; 
and  to  Sarah,  Ann,  and  Susannah,  1501.  each,  payable  when 
they  respectively  arrived  at  18.  Sarah  arrived  at  that  age  in 
January  1786,  Ami  in  March  1796,  and  Susannah  in  August 
1798.  The  legacies  therefore  amounted  to  1000/.  payable  at 
different  times;  and  the  inventory  of  his  whole  personal  estate 
was  a  little  better  than  1300/.  The  wife  of  the  testator  remain- 
ed on  the  estate  devised  to  the  defendant,  until  he  came  of  age; 
before  which  period  she  had  been  a  considerable  time  married 
to  IVebb. 

Montgomery  and  Hopiins,  for  the  appellants.  We  agree  that 
dower  is  a  favoured  claim ;  but  it  is  barred  by  the  acceptance 
of  a  collateral  devise  from  the  husband,  if  it  was  so  intended  by 
him.  The  only  question  is,  in  what  manner  the  intention  is  to 
be  ascertained.  It  certainly  need  not  be  express;  equity  has 
long  since  established  a  different  rule;  but  if  atiy  intent  to  ex- 
clude the  wife  can  be  collected  from  the  circumstances  of  the 
case  appearing  upon  the  will,  it  is  sufficient;  Laxvrencev.  Law- 
rence (a),  Jones  v.  Collyer  {h);  that  is,  any  plain  intent;  we  do 
not  contend  for  a  bar,  where  the  arguments  each  way  are  in  equi- 
poise. The  rules  by  which  the  wife's  right  is  to  be  tested,  are 
perfectly  settled.  They  are  founded  in  reason,  and  in  a  spirit 
of  deference  to  the  testator's  intention.  One  rule  is,  that  the 
wife  cannot  claim  under,  and  at  the  same  time  in  opposition 
to  the  will.  Another  is,  that  she  cannot  take  both  devise  and 
dower,  where  by  the  will  there  is  no  fund  to  satisfy  both.   A 

^o)  1  Ld.  Kay.  438. 1  £ro.  C.  C.  593  (/')  Ambler  7.'. ' 


568  CASES  IN  THl'  SUPREME  COURT 

1809.      tliirtl,  that  she  cannot  take  when  the  devises  of  the  will  and  her 

77,  dower  arc  inconsistent.  In  all  these  cases  the  husband  must  have 

Webu 

^,  intended  to  exclude  her;  because  it  necessarily  follows,  that  the 

Evans,  wife,  by  claiming  her  dower,  contradicts  the  will.  Villa  Real  v. 
Lord  Galway  (a).  In  the  present  case  he  gives  the  wife  during 
her  widowhood,  which  is  an  estate  for  life  determinable  by  her 
ownact,  rtr;jo/?'*crt5e(^),thefrontroomandkitchenin  hishouse, 
and  the  common  use  of  the  oven,  drawwell,  and  springliouse: 
that  is,  he  gives  her  about  one  third  of  the  messuage  and  ap- 
purtenances, part  of  the  fund  from  which  dower  is  to  arise. 
Here  is  one  evidence  of  a  plain  intention  to  exclude  her.  She 
cannot  have  both  the  devise  and  the  dower,  because  the  last 
includes  the  first.  It  is  like  the  case  of  Hamilton  v.  Buck-waiter^ 
decided  by  this  court  in  1798,  where  the  testator  devised  to  his 
widow  his  lands  in  Lampeter  township,  during  her  natural  life 
of  widowhood,  and  the  rest  of  his  lands  to  other  persons.  She 
married,  and  then  brought  dower  for  the  Lampeter  lands;  and 
it  was  held,  that  the  devise  being  of  part  of  the  lands  from  which 
dower  was  to  arise,  the  acceptance  was  an  extinguishment  of 
dower.  But  he  also  gives  her  the  profits  of  all  his  lands  until 
his  sons  arrive  at  age  to  possess  them:  that  is,  (hey  are  to  pos- 
sess them  at  21,  and  not  s/ie.  Her  dower  therefore  must  defeat 
iheir  possession  of  one  third;  which  was  held  to  be  a  strong 
circumstance  in  Villa  Real  v.  Galway.  She  is  to  possess  the 
xvhole  under  the  will  for  many  years  after  his  death.  It  is  cer- 
tain then,  that  he  intended  to  exclude  her  from  dower  at  the 
instant  of  his  death,  because  she  could  not  have  it  at  that  time, 
and  also  hold  under  the  will.  But  she  could  not  have  a  right  to 
dower  at  anv  other  time.  Her  right  was  complete  then,  or  it 
never  could  be;  and  therefore,  as  it  was  intended  to  be,  and 
was,  a  bar  at  his  death,  it  was  a  permanent  bar.  She  is  also, 
during  her  life  of  widowhood,  to  have  a  horse  and  cow  kept 
for  her  by  the  occupant  of  his  house,  and  firewood  cut  and  laid 
at  her  door.  This  too  is  out  of  the  fund  which  is  to  satisfy 
dower.  It  is  in  the  nature  of  an  annuity  from  this  fund,  which 
brings  it  within  Jones  v.  Collyer^  Gosling-  v.  IVarburton  (c), 
Villa  Real  v.  Galway^  Arnold  v.  Kempstcad  {d)^  and  Wake  v. 
Wake,  {e)  The  amount  is  of  no  consequence;  for  in  Jones  v. 
Colhjer  and  Wake  v.  Wake^  the  annuity  was  far  less  than  the 
dower.  The  will  then  proceeds  to  devise  a  moiety  of  his  lands 

(a)  AvMer  682.  (c)  Cro.  Eliz-  128.  (e)  3  Ves.jr.  335. 

lb)  4  Hep.  3.  {d)  Vid.  Ambler  682. 


OF  PENNSYLVANIA.  569 

to  Isaac^  reserving  a  privilege  of  water  for  the  other  moiety,      1809. 
which  he  gives  to  William.   But  the  claim  of  dower  is  inconsis-     ^^,33 
tent  with  both  the  reservation  and  the  grant;  it  must  in  all  pro-         v. 
bability  defeat  both  for  the  widow's  life.  The  whole  will  there-     Evans. 
fore  contains  ever)'  ingredient  that  is  necessary  to  raise  an  in- 
tention to  exclude.  That  the  widow  would  be  destitute  after 
the  children  arrived  at  age,  if  it  were  true,  would  be  her  own 
fault;  because  she  was  not  bound  to  accept.   But  it  is  not  true. 
She  had  the  profits  of  the  land  for  many  years,  and  the  inven- 
tory of  about   1300/.  subject  to  legacies  as  they  should  fall 
due,  without  interest;  which  was  worth  about  700/.  The  case 
of  Kennedy  v.  Ncdroxu  (a)  is  very  distinguishable  from  this.  In 
that  case  there  were  funds  to  answer  both  the  devise  and  dow- 
er; the  suit  was  for  lands  not  devised  to  the  wife;  and  there 
was  no  intention,  apparent  upon  the  will,  that  the  wife  should 
not  take,  nor  any  inconsistency,  or  overthrow  of  other  devises, 
produced  by  her  taking. 

The  jury  have  found  damages.  The  statute  of  Merlon^  by 
which  damages  are  given  in  dower,  extends  only  to  lands  ot 
which  the  husband  died  seised.  They  should  therefore  have 
found  that  he  died  seised,  and  of  what  estate;  and  for  want  oi 
it,  the  judgment  of  damages  must  be  reversed.  J5w//.  N.  P,  116. 
Co.  Litt.  32.  b.  The  declaration  does  not  even  aver  a  dying 
seised;  which  puts  the  objection  beyond  doubt. 

C.  Smith  and  Tilghman  for  the  demandants.  In  the  first 
place,  the  record  cuts  up  the  argument  ol  the  tenant  by  the 
roots;  for  the  acceptance  was  put  in  issue,  and  with  the  other 
pleas  negatived  by  the  general  finding  of  the  jur) .  But  upon 
the  will,  the  case  is  equally  with  us.  Dower  is  a  riglit  ol  all 
others  the  most  favoured.  It  is  the  widow's  property.  She 
does  not  hold  it  at  the  will  of  her  husband;  but  has  as  firm  an 
interest  in  it  as  he  has  in  the  fee,  by  gift  of  law  which  no 
conveyance  by  him  can  defeat.  Her  claim  is  better  than  the 
iieir's,  whom  the  ancestor  may  disinherit;  while  she  can  be  de- 
prived only  by  certain  crimes.  If  llicrefore  nothing  but  an 
express  intention,  or  the  most  plain  and  necessary  implication,  ^ 
can  disinherit  the  heir,  a  fortiori  as  to  the  wife;  in  her  case  it 
chould  be  incontrovertible.  The  argument  which  is  drawn  fion\ 
rhe  inconsistency  of  dower  with  the  devise  to  the  5;ons,  prove* 

(rt^  1  Dull   415. 


570  CASES  IN  THE  SUPREME  COURT 

1809.  too  much.  It  proves  that  every  devise  to  the  wife  must  be  in 
Wkhb~  ^^^  ^^  (lower,  if  the  husband  wills  away  his  lands.  Such  incon- 
r.  sistency  is  of  no  consequence;  the  testator  meant  to  give  only 
Evans,  what  he  had  a  right  to  give;  and  his  devisee  must  take  subject 
to  dower  and  all  other  incumbrances.  Strahan  v.  Sutton,  (o) 
The  only  question  is,  whether  dower  is  inconsistent  with  the 
devise  to  the  wife.  And  upon  this,  it  is  not  sufficient  that  the 
husband  did  not  intend  her  to  take.  She  does  not  want  his  in- 
tention in  her  favour.  He  must  have  intended  to  exclude  her; 
and  this  must  be  made  out  from  the  will  to  be  so  clear.,  plain^ 
and  incontrovertible.,  that  the  husband  could  not  possibly  give 
what  he  has  givr-n,  consistently  with  her  claim  of  dower.  French 
v.  Davies.  (Ji)  The  first  objection  is,  that  she  has  a  room  &c. 
fo)  life  in  the  farm  house;  and  of  the  same  kind  is  the  other, 
that  she  is  entitled  to  firewood  and  ihe  keeping  of  a  horse  and 
cow.  The  old  cases  of  annuities  and  devises  out  of  the  dower 
fund,  have  been  ver}'  much  shaken,  if  not  overthrown,  by  mo- 
dern decisions.  It  is  impossible  that  Villa  Real  v.  Gahvay.,  and 
Jones  V.  Collyer.,  can  stand  with  lord  Loughborough's  decision 
in  Pearson  v.  Pearson^  (c)  and  lord  Thiirloiv's  in  Foster  v. 
Cook;  I  d)  the  rule  in  these  cases  being,  that  if  there  is  sufficient 
to  satisfy  the  annuity  and  the  dower,  it  does  not  shew  an  inten- 
tion to  bar.  Neither  can  they  stand  with  Kennedy  v.  Nedroxv; 
for  there  the  widow  was  entitled  to  an  annuity  out  of  the  land 
in  which  she  claimed  dower,  and  at  the  same  time  took  fee 
simple  lands  under  the  will,  to  four  times  the  value  of  the 
dower;  but  there  being  enough  to  satisfy  both,  she  recovered. 
The  court  there  setded  the  rule  for  this  state,  that  to  bar  her,  the 
implication,  that  she  should  not  take  both,  must  be  strong  and 
"  necessary;  or  the  devise  must  be  entirely  inconsistent  with  the 
dower;  or  the  dower  must  prevent  the  whole  will  from  taking 
effect.  Now  where  is  the  inconsistency  here?  If  the  entire 
house  had  been  given  to  her,  how  would  it  have  interfered 
with  her  dower  in  the  lands?  And  as  part  of  the  house  is  given, 
that  she  may  have  this  particular  portion  at  all  events,  may  it 
not  stand  perfectly  well  with  her  claim  to  the  residue?  As  to 
•  the  firewood,  &c.  it  is  a  personal  service  imposed  upon  the 
son.  There  is  not  then  the  least  evidence  of  intention  to  ex- 
clude; still  less,  is  there  that  clear,  plain,  and  incontrovertible 

(rt)  3  Ves.jr.  251.  (c)  1  Bro.  C.  C.  290. 

(b)  2  Ves.jr.  578  ' d)  3  Bru.  C.  C.  UT- 


OF  PENNSYLVANIA.  571 

evidence.  He   has  devised   the  rest  of  his  estate  generally;      1809. 
it  has  therefore  gone  cum  onert\  and  there  is  a  great  abundance     77, 
to  satisfy  all  claims.  Then  as  to  the  devise  of  the  profits  and         -y. 
possession  of  the  lands  till  the  sons  should  come  of  age:  the    Evans. 
very  question  was  raised  in  this  court,  upon  the  will  of  Thomas 
Grubby  who  gave  the  benefit  of  his  real  estate  to  his  wife  until  his 
sons  came  of  age  to  enjoy  their  possessions;  and  it  was  held  not 
to  be  a  bar.  The  wife  was  not  put  to  her  claim  of  dower,  until 
the  sons  came  of  age;  but  it  vested  and  was  complete  upon  the 
death  of  the  husband.  There  are,  however,  several  cases  in 
which  dower  may  be  suspended.  9  Viner  243.  pL  3.  and  4. 
We  might  argue  with  safety,  even  that  the  husband  intended 
her  to  take.  She  has  the  rents  and  profits  of  a  moderate  estate; 
but  it  is  upon  the   express  condition  of  schooling  and  well 
educating  the  children.  She  also  has  the  personal  estate  at  an 
appraisement,  subject  to  the  legacies  to  the  children,  among 
whom  the  whole   surplus  is  divisible  when  the  youngest  is 
eighteen.   At   that  time  she   is  left  without  any  thing  upon 
earth,  except  her  room,  her  horse,  &c.   unless  the  husband 
intended  her  the  benefit  of  dower. 

The  jur)',  in  practice,  very  rarely  find  a  seisin;  nor  is  it 
averred  in  any  of  the  precedents  of  declarations  in  use 
among  us.  The  damages  must  be  presumed  to  have  been 
given  for  a  detention  of  the  dower  after  a  dying  seised.  But, 
if  the  court  have  any  doubt,  the  demandants  may  release  the 
damages,  and  pray  judgment  of  the  land;  and  they  may  after- 
wards aver  that  the  husband  died  seised,  and  have  a  writ  of 
inquiry.  9  Viner  291.  p/.  21. 

Yeates  J.  This  is  an  appeal  from  the  decision  of  the  cir- 
cuit court  of  7.a/Ka.s7rr  wherein  a  verdict  passed  for  the  plaintifls 
and  the  court  ovcrruKd  a  motion  for  a  new  trial.  'Ihe  ques- 
tion arises  on  the  will  of  Isaac  Evans^  whetiier  the  widow,  ac- 
cepting the  devi.ses  therein  expressed  to  her,  is  thereby  barred 
from  recovering  dower  in  the  lands  devised  to  her  son  Isaac. 

The  will  is  dated  29ih  of  November  1781,  and  is  in  these 
words.  [Mis  Honor  here  referred  to  the  material  clauses  ofthr 
will.] 

A  variety  of  cases,  upon  this  subject,  occur  in  the  Ent^HsL 
book;i.  At  law  it  is  fully  agreed  that  when  the  husl)and  de\  ises 
gcnerallif  to  the  wife,  the  same  cannot  be  averred  to  be  in  sa 


572  CASES  IN  THE  SUPREME  COURT 

1809.  Usfactlon  of  dower,  unless  it  be  so  expressed,  (at)  Courts  of 
Wedu  t^q^ity  have  relaxed  this  rule;  and  in  some  instances  where 
V.  there  appeared  an  evident  intention  to  bar  the  wife  of  dower, 
Evans,  ^vh^re  it  would  disappoint  the  will  in  case  she  took  dower,  and 
where  the  devises  to  the  widow  and  her  claim  of  dower  would 
be  inconsistent  with  each  other,  have  put  her  to  her  election. 
I  have  heretofore  in  this  court  attempted  to  review  the  -Eng-- 
lish  cases  on  this  subject,  in  the  order  of  time  in  which  the  de- 
cisions took  place;  and  to  shew  that  the  principles  of  those  de- 
cisions could  not  be  reconciled.  The  late  case  of  French  v.  Da- 
vies  in  1795,^  2  Fes.  jr.  572.  proceeds  on  the  ground  that  a 
widow  shall  not  be  put  to  her  election  to  take  under  the  will 
of  her  husband,  or  her  dower,  except  by  express  declaration  or 
necessary  inference  from  the  inconsistency  of  her  claim  with 
the  dispositions  of  the  will.  The  same  principle  of  decision  was 
laid  down  by  the  master  of  the  rolls  in  Strahan  v.  Sutton  in 
1796.  3  Fes.  Jr.  249. 

Several  cases  of  dower  have  occurred  in  this  court  and  at 
nisi  prius.  In  Kennedy  v.  Nedrow  et  al.  {b)  it  was  determined 
in  bank,  that  dower  cannot  be  barred  by  a  collateral  recom- 
pense, though  under  the  terms  of  the  will  the  widow  took 
an  annuity  out  of  lands  to  which  her  claim  of  dower  extended, 
and  though  she  had  brought  partition  for  dividing  lands  under 
a  devise  in  the  will,  in  which  it  was  acknowledged  that  the 
moiety  of  the  premises  out  of  which  dower  was  claimed  belong- 
ed to  the  tenants.  In  Hayniltonv.  Buckwalter^^whtrem  '^wdQ- 
ment  was  entered  for  the  tenant  m  December  ttvm  1798,  dower 
was  claimed  in  294  acres  of  land  in  Lampeter  township,  Lan^ 
raster  co\y[\\.Y.  The  tenant  pleaded  that  John  Patton,  the  former 
husband  of  the  demandant,  devised  to  her  all  his  lands  in  Lam- 
peter toxvnship  during  her  natural  life  of  widowhood;  but  in 
case  she  married,  then  she  was  to  leave  the  plantation,  on  re- 
ceiving 50/.  a  horse  and  saddle,  with  her  bed  and  bedclothes; 
and  this  was  averred  to  be  in  lieu  and  satisfaction  of  dower. 
The  majority  of  the  court  were  of  opinion,  that  they  might  in 
the  construction  of  a  will  necessarily  imply  an  intention  not 
particularly  specified  in  words,  though  not  on  arbitrary  conjec- 
ture, even  if  founded  on  the  highest  degree  of  probability,  (c) 
The  widow  could  not  possibly  hold  the  lands  under  the  will, 

(a)  Co.  Lin.  36.  h.   4.  Co.  4.  a    Bro.  Ab.  devhe.pl.  69. 
•''-n  n,ll.A\5.  <'r^  3  7'.  i?.  473. 


OF  PENNSYLVANIA.  575 

and  be  endowed  thereof  at  the  same  tune.  The  devise  to  her  of     1809. 
those  lands  during  widowhood  was  a  freehold  interest  deter-      Webb 
minable  on  her  own  act  only;  (a)  and  such  a  devise  might  be         v. 
pleaded  in  bar  of  dower,  where  the  widow  entered  under  the     i^-VANs. 
will,  and  afterwards  intermarried.  (Z")  She  could  not  insist  on 
continuing   in   possession  after  receiving  50/.   and  the  speci- 
fic legacies  devised  to  her  on  leaving  the  premises.   Her  claim 
of  dower  therefore  was  utterly  inconsistent  with  the  express 
words  of  the  will,  and  incompatible  with  the  plain  intention 
thereof.  I  have  gone  into  the  grounds  of  this  decision  more 
fully,  as  the  defendant's  counsel  have  endeavoured  to  assimi- 
late the  two  cases. 

The  case  of  Joseph  Creacraft  et  uxor  v.  Wioiis^  on  the  will 
of  Jabrz  Baldwin  (c)  came  before  two  of  us  in  the  county 
of  Washing'ton;  and  M^Cullough  et  uxor  v.  Grubb  likewise  in 
Lancaster  county.  The  latter  case  resembles  that  before  us  in 
one  particular,  that  the  testator  there  had  devised  the  residue 
of  the  personal  estate  and  all  his  real  estate  to  his  widow,  un- 
til his  several  sons  arrived  to  their  respective  ages  of  21  years. 
The  diftcrcnt  members  of  this  court  held  that  the  widow  was 
entitled  to  dower. 

But  it  has  been  oljjected,  that  a  clause  in  this  will  forms  a 
material  distinction  between  the  two  cases.  The  words  are 
*'  I  give  to  my  wife  Ann  during  her  widowhood  the  front 
'  room  of  the  house  wherein  I  now  live,  the  small  cellar  under 
•'  the  kitchen,  and  the  common  use  of  the  kitchen,  oven,  and 
''  drawwtll,  and  the  privilege  of  passing  and  repassing  to  and 
"  from  every  of  the  same."  To  this  it  is  a  sufficient  answer  to 
say,  that  the  house,  kitchen,  and  premises,  out  of  which  these 
privileges  are  granted,  do  not  stand  on  the  lands  devised  to 
Isaac  Evans  the  defendant  in  this  suit;  and  it  is  immaterial  at 
present  to  determine  what  operation  this  would  have,  as  to  the 
lands  devised  to  Jl'^ii/iam.  But  waiving  this  answer,  there  does 
not  appear  any  incompatibility  between  this  devise  and  the 
widow's  claim  of  dower.  She  was  to  educate  and  school  the 
children  until  the  sons  attained  their  full  age;  and  the  profits  of 
lh<;  lands  during  their  minority  were  given  to  her  for  that  pur- 
pose. It  would  be  harsh  indeed  to  ascrilic  to  the  testator  the 
intention,  that  his  widow  after  that  time  should  remain  dc- 

(n)  4  Co.  3.  a.  Co.  Lilt.  36.  0.  (b)  Moor.ol.  case  102. 

(r)  AUdiion  350. 

Vol.  I.  4  D 


574  CASES  IN  THE  SUPREME  COURT 

1809._  pendent  on  the  bounty  of  her  children,  in  a  state  of  helpless 

Webb  P*-'""')'-  ^^I't  suppose  this  to  be  the  case,  we  may  say  with  the 
^  V.  master  of  the  rolls  in  French  v.  Davies,  "  We  arc  not  now  say- 
i:vAN-s.  ''  ing  what  the  testator  would  have  done,  if  he  had  recollected 
"  his  wife's  dower.  Privately  wc  may  almost  be  satisfied,  if  he 
"  had  recollected  it,  he  would  have  made  a  condition  upon  her. 
"  He  has  not  done  so  expressly.  Has  he  done  it,  so  that  we 
"  can,  as  judges,  say  it  is  impossible  he  could  mean  her  to  have 
"  both?  We  cannot  upon  this  will  say  she  has  disappointed 
"  him."  Or,  according  to  his  language  in  Stralinn  v.  Sutton^ 
"  we  must'  suppose  every  testator  meant  to  give  all  he  had  a 
'*  right  to  give.  The  case  is  clearly  decided,  that  a  gift  of  an 
"  estate  out  of  which  the  widow  is  dowable,  does  not  prevent 
"  her  from  taking  any  other  estate  the  testator  has  thought 
"  fit  to  give  her." 

In  fact  this  very  question  came  before  the  late  chief  justice 
Jl'-Kean  and  myself,  in  an  ejectment  commenced  by  the  lessee 
of  IVilliam  Evans  against  the  now  plaintiff  Webb^  on  a  case  sta- 
ted at  nisi  prius  at  Lancaster  in  3Iaij  1794.  We  took  time  to 
advise  thereon  after  the  argument,  and  in  Jamiary  term  1795, 
'^  delivered  our  opinion  with  our  reasons,  that  the  claim  of  Webb 
in  right  of  his  wife  to  her  dower,  was  not  inconsistent  with  or 
in  contradiction  of  the  will.  I  see  no  reason  for  altering  the 
opinion  which  I  then  formed  on  due  deliberation. 

But  my  mind  is  not  yet  satisfied  as  to  the  manner  of  enter- 
ing judgment  on  the  verdict.  The  late  mournful  event  has  put 
it  out  ol  my  power  to  examine  the  law,  and  consult  the  entries 
in  such  cases,  as  fully  as  I  intended;  and  therefore  the  cause 
must  be  continued  under  advisement.* 

Brackenridge  J.  concurred. 

Cur.  adv.  vult. 

At  a  subsequent  day  the  demandants  by  their  attorney  re- 
leased the  damages  found  by  the  jury;  and  on  motion,  the  court 
gave 

Judgment  for  the  demandants. 

*  His  Honour,  at  the  close  of  his  opinion,  informed  the  bar,  that  the  late 
Mr.  Justice  Smith  had  seen  andconcuiTcdinit. 


OF  PENNSYLVANIA.  575 

itfJil  1809. 

Ipw357  ~" 

^I_il»'    Grasser  and  wife  against  Eckart  and  wife.  Saturday, 

April  1st. 

^  I  ^HIS  was  an  appeal  from  the  decision  of  I'eatea  J.  at  a  cir-  ^v],ci.e  ti 

-■-   cuit  court  for  LancaatiT  county,  in  April  180G.  residue  of  a 

The  action  was  brought  to  recover  a  distributive  share  of  the  noi.«r,n!  i''«= 

estate  of  Frederick  White^  intestate,  from  the  defendants,  who  tate  is  not 

in  the  writ  were  styled  his  administrators.  The  declaration  con- {^'^{^[^^^^.l^  •. 

lained  two  counts.  The  frat  was  a  general  indebitatus  assump-  is  always  a 

sit  for  money  had  and  received  by  ^firtr?  and  wife  to  the  use-jj^",^^"^'' 

of  Grasser  and  wife  in  right  of  the  wife;  but,  although  the  re-  wlicthcrthp 

lital  of  the  writ  stated  the  defendants  to  have  been  attached  ^s  (.ptiji^. j  ^^  ;^ 

administrators,  the  count  was  against  them  personallv.   The '^'^'"'^^icially, 

,  .    ,  r        1        1-       -1       •  1  •  orasiitrus- 

second  was  a  special  count  lor  the  distributive  snare  in  ques- tee;  and  this 

tion.   It  recited  that  Frederick  JF/iite,  a  minor,  and  only  child ^"estionde- 

of  Frederick  JVliite  deceased,  being  possessed  of  personal  pro- the  sufficicn- 

perty  to  the  value  of  3000/.  died  intestate  and  without  issue,  not  ^>  "*  ^lie  evi. 

having  or  leaving  any  brothers  and  sisters  of  the  whole  or  half  wiiidi  the 

blood;  bv  reason  whereof  the  personal  estate  vested  in  the  next'"'^^"'^''^"  i^ 

r  ,  •       o         T     1  -1  1-       -I       •  1  •       ^      ii'ade  out. 

of  kin,  &c.   It  then  set  out  a  title  to  a  distributive  snare  in  the  ijuttlie  bare 

wife  o{  Grosser,  that  the  defendants  took  upon  themselves  the  •'P.P^'itmenv 

burden  of  administration,  and  that  3000/.  beyond  all  debts  and  tor,  hprhna 

funeral  expenses  had  come  to  their  hands,  by  reason  whereof/'^"*'  ^^'i- 

1  1  111  1         1    ■      -m       t  1-1  di-iicc  th:it  it 

they  became  liable  to  pay  the  plaintut  s  share,  which  was  aver-  js  given  to 
red  to  amount  to  1000/.;  and  in  consideration  whereof  thev  un-  '""^  honcfi- 
dertook  and  promised  to  pay.   But  the  count  did  not  state  that    a  testator 
thc)'  became  liable  to  pav  as  administrators,  or  that  thev  had  f»<lti-s all  his 

1  }•■..'         --rL       1    r       1  111'  <l<l)tsandru- 

assumed  as  administrators.    1  he  defendants  pleaded  fion  av- „(>ral  cxncn^ 

sumpsit,  hlenc  adininistrdvit,  imd  />ai/ment  with  leave.  scstohc 

Upon  the  trial  ot  the  cause,  a  number  of  points  were  made,  (.jvis  his 

and  afterwards  claboratelv  argued  upon  the  appeal;  but  as  this^^'''  ~^^'^- 

r         1      I     •  .     :  .       .  I  «  '  ;i,„l  till- ilSft 

court  conlmed  their  opinion  to  two,  it  is  unnecessary  to  give  „(i, is  iv:U 
any  other  statement  than  such  as  is  requisite  to  introduce  these'  '*'-'"'  "'"•'! 

.  '  his  only 

points*  child,  a  son, 

tlii-n  about 
five  years  old,  shall  be  fifteen.  He  eives  his  son  15/.,  a  few  specific  Icffacics,  and  all  liis 
real  estate;  and  then  orders  the  residue  of  his  personal  estate,  i  xc<|)t  a  t:blc  and  two 
stoves,  fo  /jr  aolri  by  his  executors  at  puhlir  s;.le,  as  soon  as  nii};-ii(  l)e  after  his  dcatli, 
to  the  best  advantage;  ami  nuikei*  his  wife  anil  two  friends  executors.  //</(/,  th;it  they 
take  as  trustees. 

A  count,  rhart^injf  man  and  wife  upon  a  joint  asstmiption  in  consideration  fif  money  had 
and  received  by  them  to  the  ]>laintiit 's  use,  is  bad,  and  cannot  be  amended  under  tlic  ar« 
bit  ration  law. 

Jiidfjmcnt  may  h^  .-uresti.d  for  an  olijec  tion  on  the  face  of  tlic  record,  tlion(fh  it  was  n«1 
assigned  at  tlic  time  of  filiiic^  llic  niotinn.  or  of  i uti  rini'-  cin  njijx- 11 


576  CASES  IN  THE  SUPREME  COURT 

1 809.  fi^e  wife  of  Eckart  was  the  widow  of  Frederick  White  the  fa- 

"Tr  thcr,  and  one  of  his  executors.   The  father  died  in  1798,  leav- 

^,,  ing  the  intestate  his  only  child  about  five  years  of  age,  who 
Eckart.  died  before  the  8th  July  1800.  On  the  25th  November  1800 
these  executors  settled  their  account  in  the  register's  office,  and 
acknowledged  a  balance  of  2,434/.  2*.  \0d.  to  remain  in  their 
hands,  to  be  paid  as  the  will  directed.  All  the  property  came 
exclusively  into  the  hands  of  the  defendants  in  consequence  of 
this  settlement.  By  a  second  account  filed  the  27th  February 
1805,  this  balance  was  considerably  reduced;  and  on  the  same 
day  the  defendants  settled  the  administration  account  of  the 
estate  of  Frederick  White  the  son,  in  which  they  did  not  charge 
themselves  with  his  share  of  the  above  balance,  which  was  the 
surplus  of  his  father's  personal  property  not  disposed  of  by  his 
will,  and  which  in  fact  was  the  principal  part,  if  not  the  whole 
of  the  personal  property,  said  to  have  been  left  by  the  son.  The 
defendants  contended  that  this  surplus  went  to  the  executors  of 
the  father  beneficially,  and  that  the  intestate  took  no  part  of  it; 
and  for  this  position  they  relied  upon  the  will,  the  material 
clauses  of  which  were  these. 

"  As  to  my  worldly  estate  wherewith  it  has  pleased  God  to 
"  bless  me,  I  bequeath  the  same  in  the  manner  following,"  viz. 
"  First,  I  order,  and  it  is  my  will,  that  all  my  just  debts  and 
"  funeral  expenses  be  paid  and  discharged  out  of  my  estate, 
"  by  my  executors,  as  soon  as  conveniently  may  be  after  my 
"  decease." 

"  Item,  Igive  and  bequeath  to  my  beloved -wife  Susannah,  the 
*'  sum  of  700/.  laxuful  money  of  Pennsylvania,  to  her  her  heirs 
"  and  assignfi  forever.''^  "  I  also  order  that  my  v^xit  Susannah 
"  may  live  on  the  place  I  now  live  on  until  my  son  arrives  at 
"  the  age  of  fifteen  years  of  age." 

"  Item,  I  give,  devise,  and  bequeath,  unto  my  only  child 
"  Frederick  White,  all  the  land  and  real  estate  I  am  now  pos- 
"  sessed  of,  here  or  elsewhere,  to  hold  to  him  his  heirs  and  as- 
"  signs  forever.  I  also  give  and  bequeath  unto  my  said  son, 
"  viy  round  top  chest  and  all  my  books,  (except  my  account 
"  books)  and  my  silver  watch,  andmij  silver  shoe  and  knee  buc- 
"  klcs,  txvelve  new  pervter  plates,  and  ff  teen  pounds  in  hard  cash 
"  to  be  locked  in  said  chest,  and  to  remain  there  until  he  is  of  a 
"  sufficient  age  to  use  them,  and  also  one  horse  creature,  and 
"  one  forty  gallon  still.''' 


OF  PENNSYLVANIA.  577 

"Item,  I  give  and  bequeath  unto  Frederick  Hoofman  20/.      1809. 
"  without  interest,  that  I  lent  to  the  widow  Groanbaugh,  to  him  " 
"  his  heirs  and  assigns."  -y. 

"  It  is  mij  will^  and  I  order  that  all  the  residue  and  remain-   Eckart. 
"  der  of  my  personal  estate  (except  my  dining  table  and 
"  TWO  stoves)  shall  be  sold  by  public  sale  by  my  executors  or 
"  the  survivors  of  them^  as  soon  as  may  be  after  my  decease^  to 

"  THE  best  advantage." 

He  then  made  his  wife  executrix,  and  two  of  his  friends  ex- 
ecutors of  the  will,  and  dated  it  on  the  17th  March  1798. 

His  Honour  charged  the  jury  upon  this  head  against  the  de- 
fendants; giving  it  as  his  opinion,  that  the  will  furnished  strong 
internal  evidence,  that  White  the  father  did  not  intend  the  re- 
sidue of  his  personal  estate  to  go  to  his  executors  beneficially; 
and  that  in  cases  like  this,  it  was  always  a  question  of  inten- 
tion. The  jury  accordingly  found  for  the  plaintiffs,  upon  the 
frst  count  in  the  declaration. 

The  defendants  moved  for  a  new  trial,  which  was  overruled; 
and  also  in  arrest  of  judgment  for  a  misjoinder  of  counts  in 
the  declaration,  the  first  charging  the  defendants  personally, 
and  the  second  in  their  representative  capacity  as  administra- 
tors. This  also  was  overruled  by  his  Honour,  and  the  defend- 
ants entered  their  appeal. 

Hopkins^  for  the  defendants,  went  fully  into  all  the  objections 
urged  below.  But  it  is  only  material  to  give  the  substance  of 
his  argument  upon  the  right  of  the  executors  under  the  will 
and  upon  the  defects  of  the  declaration.  Upon  the  first  question 
he  argued,  that  the  executors  took  the  residue  beneficially.  By 
law  the  appointment  of  an  executor  vests  in  him  all  the  perso- 
nal estate  of  the  testator;  and  it  belongs  to  him  after  payment 
of  debts  and  funeral  expenses,  not  as  a  compensation,  but  as  a 
bounty.  It  is  a  fundamental  presumption  of  law  that  the  ap- 
pointment of  executors  is  ^  gift  io  them  of  what  is  undisposed 
of;  and  although  equity  converts  them  into  trustees,  where  it 
is  necessarily  toUected  from  the  will  that  the  testator  merely 
intended  them  the  office,  2  Fonhl.  131.  yet  the  rule  laid  down 
Ijy  lord  Thurlow  in  liowkcr  v.  Hunter^  (a)  is,  that  the  execu- 
tors shall  take  beneficially,  "  unless  there  is  an  irresistible  infe- 
rence to  the  contrary."  In  the  present  case,  one  of  the  execu- 

Cci-\  1  nro.  Cha.  3?*1. 


578  CASES  IN  1 IIK  SUPHKMl::  COURT 

1809.      ^ovsy  the  wile,  has   a  legacy,  but  the   others  not;    it    there- 
"7;  fore   makes   no   impression   on   the    case;  for    it   is   undeni- 

^,  ably  settled,    iha*  a  legacy  to  one  only  ot  two  or  more  ex- 

KcKAKT  editors,  shall  exclude  neither  from  the  surplus,  because  the 
testator  might  intend  to  such  one  a  preference  pro  tanto:  Far- 
rington  v.  Kiiightlij  (a).  The  question  then  comes  to  this, 
whether  there  is  an  irresistible  inference,  or,  as  it  is  stated  in 
Clennellx.  Lewthwaiic^  (Jy)  7\  strong  and  violent  presumption  in 
the  present  case,  that  the  testator  intended  his  executors  to  be 
trustees  for  the  next  of  kin;  if  there  is  not,  then  as  in  England^ 
so  in  this  state,  according  to  Bondinot  v.  Bradford^  (c)  they 
take  it  beneficially;  and  there  must  be  a  new  trial.  Upon  the 
face  of  the  will,  there  is  no  such  intention  to  be  found.  The  son 
was  the  only  object  to  interfere  with  the  executors.  lie  takes  the 
whole  real  estate  of  the  testator,  which  was  of  great  value;  he 
also  takes  certain  specific  legacies,  and  a  small  money  legac} 
which  it  would  have  been  absurd  to  give  him,  and  to  lock  up 
in  his  chest,  were  he  to  come  in  for  a  large  portion  of  the  sur- 
plus. The  direction  to  sell,  though  it  was  used  below  as  an 
argument  against  the  defendants,  is  in  their  favour.  In  the  first 
place,  two  stoves  and  a  dining  table  are  excepted  from  the  re- 
sidue, in  compliance  with  a  known  custom  among  the  Germans, 
to  reserve  these  articles  for  the  use  of  their  house,  and  to  go 
with  it  to  the  heir.  It  shews,  in  the  same  manner  as  an  ex- 
ception proves  the  rule,  that  the  son  was  to  have  nothing  more. 
In  the  next  place,  the  residue  to  be  sold  was  that  which  re- 
mained after  the  payment  of  legacies;  the  design  was  therefore 
to  create  a  fund  for  the  payment  of  debts,  which  was  the  best 
f  way  to  meet  them;  and  a  division  of  the  surplus  of  that  fund 

in  money,  among  his  executors,  was  the  most  certain  preven- 
tive of  disputes,  and  is  a  confirmation  of  the  principle  of  law, 
that  they  were  objects  of  his  bounty,  since  he  thus  consulted 
their  interest. 

In  arrest  of  judgment  there  arc  two  objections  to  the  decla- 
ration. 1.  A  misjoinder  of  counts.  The  first  is  in  the  personal, 
and  the  second  in  the  representative  capacity.  The  plea  ol 
plene  administravit  cannot  be  pleaded  to  both;  and  the  same 
judgment  cannot  be  rendered  upon  both,  yennings  v.  Nexvman. 
(d)  Nor  is  it  cured  by  taking  a  verdict  upon  one  count.  Bagc 

{a)  1  P.  Wms.  549.  Cox\  nate.  (c)  2  Dn/l.  268. 

(b)  2  Vn:  jr.  471 .  (rf)  4  D.  C-  E.  317. 


OF  PENNSYLVANIA.  579 

v.  Broniuel.  {ii)^2.   A  misjoinder  of  persons  plaintiffs.  Where      1809. 
the  wife  is  the  meritorious  cause  of  action,  she  may  join  with   Grasseu 
the  husband,  and  not  otherwise.   Now  upon  the  general  money         v. 
count,  nothing  of  this  appears,  whatever  may  be  the  fact  as  to   Eckart. 
the  second.   It  is  therefore  bad;  B'ldgoodv.  Way  and  wife  (b), 
J^ose  and  wife  v.  Bowler;  (c)  and  it  may  be  alleged  in  arrest 
of  judgment,  or  assigned  for  error.  Brig-den  v.   Pnrkes,  (d) 
There   is  also   a  misjoinder  of  defendants.    The  first   count 
charges  man  and  wife  personally,  with  having  jointly  received 
money  to  the  use  of  the  plaintiffs,  and  jointly  assumed  to  pay  it ; 
which  cannot  be.   A  married  woman  can  make  no  contract; 
and  all  the  preceding  cases  against  joining  her  as  plaintiff,  hold 
a  fortiori  against  joining  her  as  defendant. 

C.  Smith  and  Tilg'liman  for  the  plaintiffs.  It  is  certainly  ques- 
tionable whether  in  Pennsylvania  executors  have  ever  taken  the 
surplus  beneficially.  In  Etigland  x\\c  law  was  settled  when  per- 
sonal propertv  was  of  little  amount;  and  equity  has  uniformh 
laboured  to  get  rid  of  it.  It  was  settled  too  under  the  influence 
of  a  principle,  that  executors  were  not  entitled  to  compensation 
for  executing  the  trust;  and  hence  it  has  become  a  standing 
rule  in  equity,  that  a  legacy  to  an  executor,  or  even  to  one  ot 
two  executors,  for  care  and  trouble^  makes  the  surplus  a  trust 
for  the  next  kin.  The  immemorial  practice  of  the  register's  of- 
fice in  this  state  to  make  an  allowance  to  executors  for  care 
and  trouble,  is  equivalent  to  a  legacy.  The  allowance  is  matter 
of  right;  it  is  supported  by  tiie  authority  of  an  uninterrupted 
usage;  it  has  often  been  recognised  by  the  courts;  it  is  known 
by  the  people,  and  presumptively  in  their  view  at  the  time  of 
making  their  wills;  and  is  therefore  a  sufficient  ground  for  ar- 
guu^  that  the  Enq-lish  rule  has  never  been  adopted  here.  Cer- 
tamly  there  is  as  much  reason  to  presume  an  intention  against 
the  executors  from  such  an  extraneous  circumstance,  as  Irom 
the  same  circumstance  in  effect,  appearing  upon  the  will.*  Tlic 
point  has  not  been  decided  the  other  way  in  Pennsylvania. 

(a)  3  L,-i:  99.  (c)  1  //   /?/.  108 

(I,)  2  W.  Bl.  1236.  ((/)  2  ^c.t.  t'  /'"//.  42-1. 

*  This  point  was  tl.iborntcly  tirjjticd  diinn)^  the  prcHcnt  tc  rm  \\\  WUson  \ 
Wi/ton,  where  it  appcin*!  nccisstirily  to  require  the  opiniouof  the  court,  ami 
is  now  under  advisement  IJut  liie  ([uestion  can  rarely  arise  hereafter,  as  an 
act  of  assembly  of  7th  /pnl  1807,  makes  the  executors  trustees  in  all  cases 
where  persons  d}ing  after  the  act  leave  a  b»t  will  in  wliich  the  residue  is  r\p\ 
disposed  of. 


580  CASES  IN  THE  SUPREME  COURT 

1809.      ^^''i«t  is  given  as  the  judgment  of  the  court  in  Boudinot  v. 
~  Bradford^  was  merely  the  sudden  opinion  of  the  chief  justice, 

^  without  argument,  and  without  confirmation  by  the  judges. 

EcKART.  [Smith  J.  I  took  very  full  notes  of  that  case;  and  they  contain 
nothing  in  relation  to  the  point  said  to  have  been  decided.  It 
certainly  was  not  the  opinion  of  the  court.  Yeatrs  J.  The 
opinion  attributed  to  the  court,  I  recollect,  fell  from  the  chief 
justice;  it  was  a  sudden  answer  to  a  point  made  by  Mr.  Inger- 
soll;  but  there  was  no  decision  of  the  kind  by  the  court.]  What 
however  is  the  rule  of  equity  in  England'?  Lord  Thurloxv  has 
said  there  must  be  an  irrcsintible  inference  to  bar  the  executor. 
His  ardent  mind  prompted  him  to  use  too  strong  a  phrase.  No 
case  requires  such  an  inference;  a  plain  intention  will  disinherit 
the  heir.  The  expression  is  accordingly  softened  in  subsequent 
decrees.  In  Clennel  v.  Leivthwaite,  (a)  the  master  of  the  rolls 
adverts  to  Bozvker  v.  Hunter^  in  which  case  he  says  lord  Thur- 
loxu  is  made  to  say  it  must  be  an  irresistible  inference,  which  is 
not  the  rule,  but  it  must  be  a  strong  and  violent  presumption; 
and  in  Dicks  v.  Lambert  (b)  the  same  master  of  the  rolls  asserts 
the  rule  that  the  executor  is  entitled  ''  unless  a  reasonable 
^^  ground  appears  upon  the  will,  or  as  I  see  I  stated  m  Clennel 
**  v.  Lewthxvaite^  a  strong  and  violent  presumption"  to  the 
contrary;  thereby  shewing  an  inclination  to  soften  his  former 
expression,  still  much  weaker  than  lord  Thurloxv^s.  The  true 
rule  is  given  in  Urquhart  v.  King^  (c)  "  that  in  equity  it  is  al- 
"  ways  a  question  of  intention."  What  was  the  intention  here? 
The  widow  is  provided  for;  she  has  a  large  legacy,  and  the 
realty  until  the  son  is  fifteen.  This  son  was  the  only  child.  He 
has  a  iitw  pewter  plates,  and  15/.  locked  up  in  his  trunk;  and  if 
he  takes  no  part  of  the  surplus,  he  has  not  a  shilling  to  educate 
or  to  feed  him  from  five  years  of  age  to  fifteen,  nor  any  thing 
to  stock  his  estate,  that  he  may  enjoy  it  when  he  gets  it.  Here 
is  violent  presumption,  if  it  be  necessary.  But  the  executors 
moreover  are  ordered  to  sell  the  residue;  not  what  remains  after 
payment  of  legacies  m<:;rely,but  after  debts  and  funeral  expenses, 
all  which  are  first  provided  for  in  the  will.  Why  then  are  they 
to  sell,  and  at  public  sale,  as  soon  as  possible,  and  to  the  best  ad- 
vantage? To  take  it  according  to  the  defendant's  argument,  the 
tesciit.  r  is  guilty  of  absurdity  in  every  line.  He  takes  the  con- 
trol (A  the  property  from  those  who  alone  are  to  enjoy  it;  he 

(a)  2  Ves.  jr.  471.  {b)  4  Ves.  jr.  729.  (c)  7  Ves.jr.  228. 


OF  PENNSYLV'ANIA.  581 

commands  a  public  sale,  whether  they  choose  to  reserve  parts      1809. 

or  not,  and  he  enjoins  it  to  be  made  to  the  best  advantage,  lest "7-^  ~~ 

,    .  .  .  .  Urasser 

their  own  interest  should  not  prompt  them  to  sufficient  care.         i,. 

But  if  on  the  other  hand,  it  is  admitted  that  he  had  merely  the  Eckart. 
natural  anxiety  of  a  parent  for  an  infant  son,  and  that  he  was 
desirous  for  his  use  to  convert  perishable  or  unproductive 
goods,  into  a  fund  to  maintain  and  educate  him,  and  finally  to 
stock  his  land,  the  whole  is  reasonable  and  proper.  The  excep- 
tion of  the  stoves  and  dining  table  in  fact  seals  this  construc- 
tion, and  makes  it  irresistible.  If  the  whole  goes  to  the  execu- 
tors, so  do  the  parts.  It  is  however  conceded,  that  the  stoves 
and  table  go  to  the  son;  and  that  he  was  intended  to  take  them 
for  his  house.  But  how  is  this  to  be  reconciled  with  any  other 
position,  than  that  the  executors  were  to  take  every  thing  as 
trustees?  For  to  take  part  beneficially  and  part  as  trustees  is  in 
conformity  with  no  rule  in  existence'. 

The Jlrst  objection  in  arrest  of  judgment  is  obviated  by  the 
verdict,  which  is  upon  the  first  count;  the  second  therefore 
goes  for  nothing;  and  so  seems  to  be  the  law  from  the  arguments 
and  judgment  of  the  court  in  Rosew  Bowler.  In  modern  times 
judges  have  gone  very  far  to  support  verdicts,  and  have  often 
dissented  from  the  doctrine  that  prevailed  at  the  time  o(  Bag-c 
v.  Bromuelivom  Lcvim,  which  case  is  evidentlv  not  relied  up- 
on by  Serjeant  JVilliams^  though  he  cites  it  in  his  note  to 
.S't/w;jd'f;.».  (a)  The  objection  ishowever  obviated  byanother  con- 
sideration, tliat  both  counts  charge  the  defendants  personally. 
The  second  objection  was  not  filed  below,  and  it  is  contrary  to 
a  rule  of  the  court  now  to  admit  it.  Rc_(f.  19.  Circuit  Court.  It 
would  tend  to  surj)rise,  and  would  enable  counsel  to  throw  out 
a  lure,  by  assigning  a  flimsy  objection,  and  concealing  the  real 
point  until  the  argument.  But  it  is  not  without  an  answer.  A 
count  upon  a  promise  to  man  and  wife  is  not  bad.  A  l)ond  mav 
be  given  to  both,  and  he  may  either  join  her,  or  refuse  as  to 
her,  and  bring  the  action  alone.  Beaver  v.  Lane  (i),  Aleberry  v. 
Walby  (c).  A  fortiori  in  this  case  where  the  cause  of  action 
survives  to  the  wife.  It  docs  not  depend  upon  the  wife's  being 
the  meritorious  consideration;  for  even  where  a  parol  promise 
is  made  to  the  wife  during  coverture,  the  husband  may  make  it 
good  by  agreement,  and  join  with  her  in  aisumpiit.   Prat  and 

(a)  2  Saund.  118.  (b)  2  Mod.  217.  (c)  I  Stra.  230. 

Vol.  I.  4  E 


582  CASLS  IN  THE  SUPREME  COURT 

1809.      ^'^{/f  V.  Taijlor.  (a)  This  being  after  verdict  and  upon  an  appeal, 
~!^  the  court  will  support  the  declaration  byevery  reasonal)le  intend- 

-,,,  ment.  T'he  objection  to  a  promise  hij  man  and  wife   is  more 

EcKART.  formidable.  It  is  generally  true  at  law  that  a  married  woman 
cannot  promise.  But  as  we  have  no  court  of  chancery,  every 
thing  that  could  support  the  promise  in  equity  ought  to  be 
intended;  and  as  in  equity  the  promise  oi^feme  covert  in  re- 
spect to  her  separate  estate  is  enforced,  so  may  be  the  rule  at 
law  in  this  state,  and  the  intendment  in  the  present  case;  and 
the  judgment  may  be  so  limited  as  to  affect  her  separate  estate, 
and  the  estate  and  person  of  her  husband;  as  in  Huhne  v.  Te- 
nant and  ivife.  (b)  At  all  events  it  is  submitted  whether  the 
count  may  not  be  amended  under  the  arbitration  law,  which 
seems  to  embrace  every  defect  of  form  that  can  be  imagined. 
7  St.  Laxvs  562.  sec.  6. 

IngersoU^  in  reply,  admitted  that  the  right  of  the  executors 
to  the  surplus  was  a  question  of  intention  upon  the  face  of  the 
will;  but  he  contended  that  it  must  be  an  explicit  intention,  and 
not  merely  presumptive,  which  could  never  rebut  the  presump- 
tion of  law  in  their  favour.  He  said  that  he  did  not  recollect 
the  general  question  of  their  right  ever  to  have  been  judicially 
mentioned  in  Pennsylvania  except  in  Boud'inot  v.  Bradford^ 
where  the  chief  justice  stated  the  law,  as  is  mentioned  in  2 
Dallas^  without  any  dissent  by  the  other  members  of  the  court. 

The  second  objection  in  arrest  of  judgment,  he  said,  had  been 
given  up,  or  at  least  opposed  only  upon  the  ground  that  it  had 
not  been  assigned  below.  But  that  argument  would  go  to  de- 
mand a  judgment  manifestly  against  law,  which  no  rule  should 
induce  the  court  to  pronounce,  especially  as  they  now  sat  in  the 
last  resort.  Rules  are  made  to  facilitate  business  and  not  to 
produce  injustice;  and  though  a  rule  equally  strict  with  the  one 
cited,  requires  that  exceptions  to  reports  of  referees  be  filed  in 
lour  days,  yet  exceptions  upon  the  face  of  the  record  are  al- 
ways heard  without  being  filed,  Bleckley  v.  Dunant^  (c)  and  in 
Sjxifford  v.  Gallagher^ s  Executors^  not  reported,  the  court  per- 
mitted exceptions  to  be  added  after  the  four  days.  The  arbi- 
tration law  cures  only  defects  in  form,  and  permits  amendments 
before  and  at  the  trial.  This  is  a  defect  in  substance  and  a 

(a)  Cro.  Eliz.  61.  {b)  1  Bro.  Cha.  15.  (c)  1  Dalt.  129. 


OF  PENNSYLVANIA.  583 

verdict  has  passed.  To  strike  out  th»name  of  the  wife  is  to  alter  j  goo. 

the  nature  of  the  action,  and  to  leave  it  in  is  to  expose  her  to  GrassekT 

execution;  for  it  is  impossible  that  there  can  be  any  presump-  x,. 

tion  of  a  separate  estate,  when  all  the  facts  are  before  the  court,  Eckakt 
having  been  heard  upon  a  motion  for  a  new  trial. 

TiLGHMAN  C.  J.  delivered  the  following  opinion  for  him- 
self and  the  late  Mr.  Justice  Smithy  who  had  perused  it  after 
it  was  drawn  up  by  the  Chief  Justice,  and  accorded  with  it 
throughout. 

This  case  comes  before  the  court  on  an  appeal  from  the  cir- 
cuit court  of  Lancaster  county.  It  is  an  action  on  the  case  for 
the  recovery  of  a  distributive  share  of  the  personal  estate  of 
F.  IVhite,  claimed  by  the  plaintiffs,  Grosser  and  wife,  in  right 
of  the  wife.  In  the  writ  the  defendants  are  named  administra- 
tors of  F.  White.  The  declaration  contains  two  counts.  The 
^rst  count  is  against  the  defendants,  not  styling-  them  adminis- 
trators^ for  money  had  and  received  by  them  for  the  use  of  tl^ 
plaintiffs  in  ri^ht  of  the  xvife.  The  second  count  is  special;  it 
sets  forth  the  pedigree  of  the  family  of  IVhite^  and  deduces  to 
the  plaintiffs,  in  right  of  the  'vife^  a  title  to  a  distributive  share 
of  the  personal  estate  of  F.  White.  The  verdict  for  the  plain- 
tiffs was  taken  on  x.\\t  first  count. 

A  variety  of  points  have  been  made,  and  elaborately  argued, 
some  of  which  apply  to  the  motion  for  a  new  trial,  and  others 
to  the  motion  in  arrest  of  judgment.  We  consider  it  unneces- 
sary to  give  an  opinion  on  any  of  the  points  urged  in  favour 
of  a  new  trial,  but  one^  which  is  on  the  merits  of  the  plaintiflV 
claim;  and  by  which,  if  the  defendants  are  right,  the  plaintiffs 
are  barred,  not  only  in  this  action,  but  in  any  other  which  may 
be  brought.  The  point  to  which  I  allude,  is  this;  whether  or 
no  the  executors  of  the  will  of  Frederick  White  the  elder,  the 
father  of  /'.  White  the  intestate^  under  whom  the  plaintiffs 
claim,  took  the  surplus  of  the  personal  estate  not  disposed  of 
by  the  will,  for  their  own  benefit^  or  as  trustees  for  the  next  of 
kin.  In  the  discussion  of  this  point,  the  counsel  lor  the  defen- 
dants, before  they  considered  tlv;  intent  of  the  testator  as  it  ap- 
peared by  his  will,  introduced  a  preliminary  question,  \\z. 
whether,  at  the  time  of  tbe  death  of  Frederick  White  the  elder, 
by  the  law  of  Pennsijlvaniuy  the  appointment  of  an  executor 


584  CASES  IN  THE  SUPREME  COURT 

1809.      amounted  to  a  gift  of  the  personal  estate  as  it  does  in  England. 
~7.  We  shall  give  no  opinion  on  this  question,  as  our  opinion  will 

r.  be  founded  on  the  will.  But  1  think  it  proper  to  mention,  that 
EcKART.  we  do  not  consider  the  point  as  ever  having  been  judicially 
decided,  although  certainly  the  opinion  thrown  out  by  ('-.  J. 
M'-Kean^  in  2  Ball.  268,  is  entitled  to  great  consideration.  That 
opinion  waa  not  delivered  by  the  court,  but  by  the  chief  jus- 
tice; nor  was  there  anv  argument  upon  it.  It  was  not  before  the 
court  for  decision;  and  my  brother  Smithy  who  has  a  very  full 
note  of  that  case,  has  examined  it,  and  finds  no  mention  of  any 
such  decision.  Our  legislature  have  lately,  in  my  opinion  very 
wisely,  established  the  law,  different  from  that  which  prevails 
in  England;  for  I  am  satisfied,  that  not  one  man  in  ten  supposed, 
when  he  appointed  an  executor,  that  he  thereby  impliedly  made 
him  a  gift  of  all  his  personal  estate  not  particularly  disposed  of. 
Taking  for  granted  then  at  present,  that  our  law  was  the  same 
as  the  Eiiglish  when  this  will  was  made,  let  us  see  what  is  to 
be  found  in  the  will.  The  testator  was  possessed  of  a  conside- 
rable real  estate,  and  a  personal  estate  amounting  to  upwards  of 
1800/.  clear  of  debt.  He  had  a  wife,  and  but  one  child,  a  son 
of  about  five  or  six  years  of  age.  To  his  wife,  who  was  one  of 
his  executors,  he  gave  a  legacy  of  700/.,  and  his  whole  real 
estate  until  his  son  attained  the  age  of  fifteen;  he  gave  her  be- 
sides, some  specific  legacies.  To  his  son  he  gave  some  trifling 
legacies  in  the  nature  of  tokens  of  remembrance,  his  books, 
his  shoe  and  knee  buckles,  some  pewter  plates,  around  topped 
chest,  and  15/.  in  cash,  all  to  be  locked  up  in  the  chest  till  his 
son  was  of  a  sufficient  age  to  use  them;  he  also  gave  him  a 
horse  and  a  still.  To  one  Frederick  Hooj'man  he  gave  20/.;  and 
he  then  directs,  "  that  all  the  residue  or  remainder  of  his  per- 
"  sonal  estate  (except  his  dining  table  and  two  stoves)  should 
*'  be  sold  by  public  sale^  by  his  executors  or  the  survivors  of 
"  them,  as  soon  as  might  be  after  his  decease,  to  the  best  ad- 
'•'•  -oantagfJ'^ 

Although  by  the  law  of  England  the  executor  takes  the  un- 
disposed surplus  for  his  own  benefit,  yet  the  courts  have  cerT 
tainly  availed  themselves  of  all  reasonable  opportunities  of 
getting  over  this  rule,  which  was  established  at  a  time  when 
personal  estates  were  generally  not  of  much  value.  They  have 
adopted  this  principle,  that  where  there  are  dispositions  in  the 
will  which  appear  inconsistent  with  an  intent  that  the  execu- 


OF  PENNSYLVANIA.  585 

tor  should  take  the  surplus  for  his  own  benefit,  he  shall  take  as      1809. 
a  trustee  for  the  next  of  kin.  For  instance,  where  a  legacy  is  q^^ssfr 
given  to  the  executor;  for  why  should  he  have  a  legacy,  if  it         v. 
was  meant  that  he  should  have  the  whole?  Cases  have  been   Eckart. 
cited  to  shew  the  opinions  of  different  judges  as  to  the  principle 
on  which  wills  should  be  construed.  In  Boivker  ^  al.  v.  Hun- 
ter y  al.  1  Bro.  Cas.  in  Ch.  330.  lord  Thiirlow  lays  down  the 
rule,  that  the  executor  shall  take-  the  residue  unless  there  is  an 
irresistible  inference  to  the   contrary.  In  Dicks  v.  Lambert^ 
4  Ves.  jr.  729,  the  expressions  of  the  master  of  the  rolls  are, 
unless  "  a  reasonable  ground''''  appears  upon  the  will.  "  A  strong 
"'  and  violent  presumption''''  are  the  words  used  by  the  master 
of  the  rolls  in  Clenndl  v.  Lervtlnvaite^  2  Ves.  jr.  471.  These 
are  strong  expressions,  but  after  all,  we  are  not  to  be  governed 
by  words  more  or  less  strong,  which  different  judges,  or  even 
the  same  judge  at  different  times,  will  use  upon  the  same  sub- 
ject; but  upon  the  reason  and  principle  on  which  their  opinions 
are  founded.   Indeed  we  do  not   receive  cases  adjudged  in 
Engla7id  since  our  revolution,  as  any  authority;  we  only  regard 
them  so  far  as  they  appear  reasonable.  I  agree  with  the  master 
of  the  rolls,  who  declared  in  Urquhart  v.  King^  7  Ves.  jr.  228, 
that  in  equity  "  it  is  always  a  question  of  intention,  whether 
"  the  executor  is  entitled  beneficially  or  as  a  trustee ;  and  this 
"  question  depends   upon  the   sufficiency  of  the  evidence  by 
"  which  the  intention  is  made  out."  Here  is  a  principle  by 
which  we  may  conduct  ourselves.   Now,  so  far  as  evidence  is 
derived  from  the  will  itself,  the  only  rational  way  of  coming  at 
the  truth  is  to  give  a  fair  and  candid  construction  to  the  whole 
will,  and  determine  whether  there  is  ground  sufficient  to  satis- 
fy an  impartial  mind,  that  the  testator  did  not  intend  the  exe- 
cutor to  take  for  his  own  benefit;  for  it  must  not  be  forgotten 
that  the  bare  app(*intment  of  an  executor  is  prima  facie  evi- 
dence that  the  personal  estate  is  given  to  him  bcneiiciall)-. 

In  the  will  now  under  consideration,  the  testator  provided 
amply  for  his  widow;  and  amply  for  his  child  after  he  attained 
the  age  of  fifteen.  Hut  if  the  executors  take  the  residue  for 
their  own  use,  the  child  is  totally  unprovided  for  till  the  age  of 
fifteen.  This  is  an  intention  not  very  probable  in  the  case  of  an 
infant  child.  But  if  the  matter  rested  here,  I  should  not  think 
the  evidence  sufficiently  strong  to  convert  the  executors  into 
trustees.   I  rely  on  the  direction  given  to  tlie  executors  to  sell. 


586  CASES  IN  THE  SUPREME  COURT 

1809.      i''or  what  purpose  were  they  directed  to  sell,  if  the  property 

Ghasser  ^^'^^  *^°  ^^  ^^^^^  °^^"^  ^"'^  "°'  °"b'  *o  s^*'»  '^"^  ^t  /JttMc  .ya/«», 
X..         and  to  the  best  advantage?  I  can  see  very  good  reasoxis  for 

EcKART.  this  precaution,  in  the  mind  of  a  parent  anxious  to  secure  the 
estate  of  a  helpless  child;  but  no  reason  at  all,  if  the  intent  was 
to  give  it  to  the  executors.  It  would  not  only  be  useless,  but 
troublesome  and  expensive,  to  the  persons  who  were  the  ob- 
jects of  his  bounty,  and  very  probably  contrary  to  their  wishes. 
The  answer  given  by  the  defendant's  counsel,  that  it  was  pro- 
per to  create  a  fund  for  the  payment  of  debts,  is  not  satis- 
factory; for  it  is  the  residue  after  debts  paid ^  that  he  directs  to 
be  sold.  Besides  they  would  have  had  power  to  sell  for  pay- 
ment of  debts  without  any  direction,  if  such  sale  was  necessary, 
which  does  not  appear.  Why  were  the  dining  table  and  two 
stoves  excepted  from  the  sale?  Was  it  not  because  the  testator 
supposed  that  they  would  be  kept  in  the  house  for  his  child? 
Yet  he  has  not  given  them  expressly  to  the  child.  How  then 
was  the  child  to  have  them,  but  under  the  intention  of  the  tes- 
tator that  the  executors  should  take  nothing  but  as  trustees? 
For  if  they  took  beneficially,  they  would  take  these  articles  as 
well  as  everv  thing  else  not  particularly  disposed  of.  My  mind 
is  fully  satisfied  from  the  whole  of  the  will,  that  the  residue  of 
the  personal  estate  was  not  intended  for  the  benefit  of  the 
executors. 

Of  the  several  reasons  urged  in  arrest  of  judgment,  we  shall 
give  our  opinion  but  upon  one,  which  we  think  decisive, 
although  it  was  never  mentioned  before  the  judge  who  tried 
the  cause  in  the  circuit  court,  and  of  course  he  has  given  no 
opinion  upon  it.  The  defendants,  man  and  wife,  are  jointly 
charged  upon  an  assumption  made  by  them  to  the  plaintiffs  in 
consideration  of  money  had  and  received  by  tliem  for  the  use 
of  the  plaintiffs.  Here  is  an  attempt  to  charge  a  married 
woman  on  a  contract  made  by  her  jointly  with  her  husband 
during  the  coverture.  This  is  not  warranted  by  any  precedent 
or  principle  that  I  have  heard  of.  A  married  woman  can  make 
no  contract.  The  plaintiff's  counsel  have  indeed  candidly  con- 
ceded that  this  count  cannot  be  supported,  unless  the  court 
should  intend  that  the  wife  had  a  separate  estate,  and  had 
contracted  this  debt  on  the  credit  of  such  estate.  As 
we  have  no  court  of  chancery,  they  suppose  that  this  court 
would  be  warranted  in  entering  a  judgment  specially,  so  as  to 


OF  PENNSYLVANIA.  587 

effect   the   purpose   which  might  be  more  conveniently  and      1809. 
directly  done  in  a  court  of  chancery.   Without  inquiring  whe-  Qj^^ggj-R 
ther  we  have  such  power,  we  are  very  clear  that  we  have  no         -y^ 
ground  on  this  record  for  making  the  required  presumption.   Eckart. 
There  is  nothing  which  indicates  that  the  wife  had  any  sepa- 
rate estate,  or  that  she  made  this  contract  upon  her  private  and 
separate  account.  We  are  therefore  of  opinion,  that  upon  the  face 
of  the  declaration  there  is  no  cause  of  action  against  the  wife. 

But  it  is  said,  this  defect  is  cured  by  the  act  ''  to  regulate 
"  arbitrations  and  proceedings  in  courts  of  justice,"  passed 
21st  of  March  1806,  sec.  6.  7  St.  Laws  562.  The  great  object 
of  this  law  was  to  prevent  the  merits  of  a  cause  from  being  sa- 
crificed to  form.  The  court  are  authorized  to  go  great  lengths 
in  amendments  previous  to  and  even  during  the  trial.  This  is 
right;  and  I  will  add  that  we  shall  always  feel  disposed  to  go 
the  full  length  of  the  court's  lawful  authority  in  supporting  the 
verdicts  of  juries  after  a  trial  of  the  merits.  But  the  defect  in 
the  present  instance  is  matter  of  substance.  It  is  a  substantial 
injurv  to  charge  a  married  woman  with  money  received  by 
herself  and  her  husband,  in  the  manner  set  forth  in  this  de- 
claration. 

It  only  remains  to  take  notice  of  one  more  point  made  by 
the  plaintiff's  counsel.  They  say  the  court  should  not  attend 
to  this  error,  because  it  was  not  assigned  by  the  defendant 
when  he  entered  his  appeal.  I  think  this  would  be  exercising 
a  strictness  too  severe.  The  court  have  a  right,  and  perhaps, 
where  injustice  is  like  to  take  place,  are  bound  in  duty  to  see 
that  an  erroneous  judgment  is  not  entered,  although  it  has  not 
been  assigned  as  an  error.  We  know  the  hurry  in  which 
business  is  unavoidably  transacted  in  the  circuit  courts.  The 
most  industrious  counsel  will  often  make  omissions;  and  now 
that  this  court  is  the  court  f)f  the  last  resort,  we  think  they 
should  be  particularly  cautious  not  to  cut  a  party  off  from  a 
substantial  defence,  although  we  trust  they  will  never  give 
encouragement  to  captious  objections. 

Upon  the  whole  of  ihis  case,  our  opinion  is  that  iIk- judg- 
ment must  be  arrested. 

Yeates  J.  Upon  most  of  the  points  argued,  this  case  is  an 
appeal  from  my  decision  in  the  circuit  court,  and  therefore  I 
give  no  opinion  here  upon  them.  But  the  ground  upon  which 


588  CASES  IN  THE  SUPREME  COURT 

1809.      the  court  think  the  judgment  should  be  arrested  is  a  new  one. 
Crasser  ^"^  '  "^'^^  °"'^'  ^^^  ^^^'  '  ^S'"c«  ^^'^h  ll»tm  it  is  decisive. 

T'. 

EcKART.        Brackenridge  J.  Concurred  with  the  Chief  Justice. 

Judgment  arrested. 


Gratz  against  Phillips  and  others,  Executors  of 

Saturday,  ^ 

April  1st.  biMON. 


Amendment     4    CCOUNT  render  against  the  executors  of  Simori.  who 

ofadecbra-    /\  i  i        i  •         i  i  i      i     -i-rr        i 

lion  in  ac-  ^vas  Stated  by  the  writ  to  have  been  the  bailinand  receiv- 

count  ren-     g^  of  Michael  Gratz.  Pleas,  never  bailiff  or  receiver,  and  fully 

der  permit-  •' 

ted,  by  add-  accounted. 

ing  to  a 

count  which  i      •       i  i  i 

charged  the       Rawle  on  a  former  day  obtained  a  rule  to  shew  cause  why 

defendants'  ^^^  declaration  should  not  be  amended  by  inserting  a  count 
testator  as      .  ,  .      .  ,  -^ .    .  ° 

bailifland      in  which  the  plaintilTwas  described  as  surviving  partner^  and 

receiver  of    ^^-^  ijiterest  as  having  bce?i  held  by  him  jointly  with  a  certain 
a  count  Barnard  Gratz  deceased;  and  now  in  support  of  the  rule,  he  ci- 

himTs'b^  TfT  ^^'^  Slipper  v.  Stidstone  (a),  Hancock  v.  Hayman  (A),  French 
&c.ofthe      V.  Andrade  (c),  and  Ditchburn  v.  Spracklin  (d). 

plaintiff"  as 

surviving 

partner  of  A.     Phillips  contra,  urged  that  the  new  count  would  be  a  vari- 

\\v\tcoTT&s^  ance  from  the  writ,  and  would  put  the  defendants  to  the  neces- 
ponded  with  sity  of  meeting  a  different  allegation  from  that  which  they 

the  first  I  ^ 

f^^^^  came  prepared  to  encounter. 

But  the  court  without  difficulty  made  the  rule  absolute;  ob- 
serving, in  answer  to  the  last  suggestion  of  Phillips^  that  a 
continuance  would  be  granted  if  the  defendants  were  in  danger 

of  a  surprise. 

Rule  absolute.* 

•  The  reporter  has  been  favoured  by  Mr.  Rawle  with  a  short  note  of  the 
case  of  yenningsv.  Cox  executor  of  Gayiuorth,  decided  before  Shippen  Presi- 
dent, in  1789,  in  which  a  variance  between  the  declaration  and  the  writ  was 
held  by  our  practice  to  be  immaterial. 

The  defendant  was  summoned  as  the  executor  of  Gayuiorth,  and  the  decla- 
ration charged  him  accordingly;  to  which  he  pleaded  ne  ungues  executor.  The 

ia)5  D.  & E.  493.  (c)  6D.&E.  582. 


119 

34(1 
h289 


OF  PENNSYLVANIA.  589 

1809. 

l^  CllOX  all's   Case.  Tuesday, 

April  4th. 

/^iROXALL  presented  a  petition  to  this  court,  praying  to  be  The  iSih 

discharged  under  the  act  of  1798,  as  an  insolvent  debtor.  .^'^'^S'"""^)'^*' 

^  .  _  insolvent  lau' 

At  the  time  of  his  petition,  he   was   confined   in  the   gaol  of  of  April  4th, 

Northampton  countv;  and  by  the  return  to  the  habeas  corpus,  y^^'  ',*'"* 
'  •  •  r      '  tencled  to  re- 

upon  which  he  was  now  brought  up  for  a  hearing,  it  appeared  lieve  al!  per- 

that  he  was  detained  by  virtue  of  two  executions  and  a  Cfl6fasf°"f  '"  ^^' 

J  ^        tual connne- 

from  the  common  pleas  of  that  county.  It  also  appeared  in  evi-  ment,  whe- 
dence,  that  he  had  not  been  an  inhabitant  of  this  state  for  twOj^\^|,,'"f-^l^|g 
years  next  before  his  application,  but   was  an  inhabitant  of  state  or  not; 

\  r         ~f  but  .1  nonre- 

Nt'Xir  Jer.'ieij.  side.u  debtoi- 

Ross^  for  the  creditors,  opposed  his  discharge,  principally  n>"st  apply 
upon  two  grounds.   1.  That  not  having  been  an  inhabitant  for  j.i,^,,„^»  ^o' 
two  years,  he  did  not  come  within  the  act  of  1798.  2.  That^Iie  court  by 
being  in  confinement  under  process  from  the  common  pleas  oi ^^^^  ]\e\s  ' 
Northampton^  his  application  should  have  been  to  that  court,  confinetL 
no  other  having  jurisdiction  of  the  case. 

Upon  the  first  point,  he  said  it  was  perfectly  clear,  that  by 
the  first  section  of  the  act,  8  St.  Laws^  132,  the  case  of  inha- 
bitants was  alone  embraced.  The  14th  section,  which  is  the 
next  that  applies  to  the  description  of  persons  entitled  to  a  dis- 
charge, is  limited  in  the  same  manner;  except  that  the  first 
applies  to  persons  not  in  confinement,  and  the  fourteenth  to  per- 
sons arrested  in  execution  in  vacation.  The  restriction  to  in- 
habitants seems  evident  from  the  duty  it  imposes  upon  the 
debtor  to  give  bond  to  a  judge  of  this  court,  or  to  the  president 
or  two  judges  of  the  common  pleas  for  the  county  w/uve  th^^ 
debtor  resides;  and  residency  being  required,  it  must  mean  the 
residency  pointed  out  by  tlie  first  section.  The  only  remain- 
ing section  that  applies  to  this  point,  is  tlie  eighteenth;  by 
which  all  persons  in  actual  confinement  by  adversary  process, 
may  at  the  next  term  after  such  confinement,  petition  to  be  dis- 
charged, agreeably  to  the  true  spirit  and  meanini(  of  the  pre- 

pbintifT  withdrew  his  firnt  lUchiriilion,  and  fiWd  unotlur  cliarj^inj^  the  dc-. 
frndant  as  excciitor  of  the  executor  of  Cuyvorlh.  The  tlcfendunt  tlien  craved 
oyer  of  the  writ,  and  pUad«-d  the  variance  between  the  writ  and  the  cotnU, 
in  abatement.   But  on  argument,  the  court  overndcd  thr  ph-a  in  ahatcTneiii 
and  awarded  a  rr.rpondcai  »'ii.tn 

Vol.  I.  I  F 


590  CASES  IN  THE  SUPUEiME  COURT 

1809.      vious  sections.    The  previous  sections  embrace  the  case  of 
rrTr~T~T.  inhabitants  for  two  years.  Unless  therefore  the  debtor  be  such 

Gasc.      an  inhabitant,  he  is  not  within  their  spirit  and  meaning. 

Upon  the  second  point,  he  contended  that  this  court  could 
not  interfere.  Take  the  application  either  under  the  fourteenth 
or  eighteenth  section.  Under  the  eighteenth,  the  debtor  may 
at  the  next  term,  after  actual  confinement,  petition  for  dis- 
charge. The  court  is  not  mentioned,  but  the  reasonable  con- 
struction of  the  phrase  is,  that  it  means  the  next  term  of  the 
court,  whose  process  has  produced  the  actual  confinement. 
Take  it  under  the  fourteenth.  He  is  to  give  bond  to  appear 
before  the  court,  of  which  the  judge  to  whom  he  applies  is  a 
member,  conditioned  for  surrendering  himself  to  prison,  if  he 
does  not  comply  with  the  act.  This  also  means  a  judg«  of  the 
court  by  whose  execution  he  has  been  arrested  in  vacation.  A 
contrary  construction  would  enable  a  party  to  bring  his  credi- 
tors from  Erie  to  Philadelphia^  and  would  make  the  surrender 
to  the  prison  of  one  court,  while  the  application  was  to 
another. 

Levy  for  the  petitioner.  The  act  of  1798  is  a  beneficial  law, 
and  should  be  construed  liberally.  If  actual  confinement  for  two 
years  is  necessary  in  the  case  of  a  nonresident,  the  law,  though 
intended  to  be  more  lenient  to  the  debtor  than  the  former  law, 
is  much  more  severe;  for  the  former  law  required  in  such  a 
case  but  six  months'  confinement.  Both  th-^  14th  and  18th  sec* 
tions  omit  the  qualification  of  inhabitancy  mentioned  in  the  1st, 
and  the  terms  of  the  18th  are  broad  enough  to  embrace  every 
case. 

As  to  the  point  of  jurisdiction.  This  court  has  very  exten- 
sive jurisdiction  in  many  cases.  The  legislature  has  given  it  to 
them  over  the  whole  state,  in  cases  of  partition;  and  if  there  is 
no  ambiguity  in  the  words  of  this  act,  no  exposition  can  be  ad- 
mitted against  them,  merely  because  they  give  extensive  pow- 
ers. By  the  1st  section,  it  is  evident  that  wherever  the  debtor 
resides,  he  may  apply  to  the  judges  of  this  court.  He  may 
bring  his  creditors  from  Erie  to  Philadelphia.  The  legislature 
therefore  begin  by  giving  the  jurisdiction  v/e  assert.  So  if  ar- 
rested, and  out  on  bail;  this  is  one  step  further.  I'hen  comes  the 
14th.  It  does  not  say  that  he  must  apply  to  the  court  from, 
which  execution  issued,  but  he  may  apply  to  any  judge  of  the 


OF  PENNSYLVANIA.  591 

supreme  court,  or  to  two  judges  of  the  county  where  he  re-      «op,Q 

sides.  Now,  according  to  the  opposite  argument,  il  he  resides 

in  Buckfi.  and  is  arrested  bv  execution  from  the  common  pleas  ^^P,^*"^^  ^ 

'  -  ,  Case, 

in  Chester,  he  cannot  apply  any  where.  Here  then  the  law,  to 

avoid  a  monstrous  inconvenience,  docs  allow  an  application  to 
another  court;  and  the  case  put  furnishes  a  good  reason  for  al- 
lowing a  resort  to  this  court  in  all  cases.  Then  comes  the  18th 
section.  The  14th  provides  for  applications  either  to  this  court 
or  the  common  pleas  in  their  respective  vacations;  and  the  18th 
provides  for  applications  at  their  respective  terms.  The  objec- 
tion to  tiie  jurisdiction  has  no  merits,  it  is  merely  technical,  and 
therefore  the  court  should  lean  against  it. 

TiLGHMAN  C.  J.  delivered  the  opinion  of  the  court. 

It  appears  that  the  petitioner  is  an  inhabitant  of  Nezv  jfersei/^ 
who  was  confined  in  the  gaol  of  the  county  oi  Northampton^hy 
virtue  of  one  capias  and  two  executions  from  the  court  of 
common  pleas.  Several  objections  have  been  made  to  his  dis- 
charge, of  which  it  will  only  be  necessary  to  consider  two. 

Thcjirfit  is,  that  he  is  not  an  inhabitant  of  this  state;  tlie  se-' 
cond^  that  the  process  by  virtue  of  which  he  is  confined  did 
not  issue  from  this  court. 

The  act  of  assembly  under  M'hich  this  petition  is  exhibited, 
extends  relief  to  insolvent  debtors  in  many  instances  in  which 
none  had  been  given  before.  The  frst  section  applies  to  per- 
sons not  ill  confinement^  who  are  not  entitled  to  the  benefit  of 
the  act,  unless  they  have  been  inhabitants  of  the  state  for  two 
years  next  before  their  application.  The  fourteenth  section  re- 
lates to  persons  arrested  in  execution  in  vacation.  It  requires  no 
previous  inhabitancy,  but  seems  to  be  confined  to  those  who  are 
residmg  in  the  state;  because  the  petition  is  to  be  "to  any 
*' judge  of  the  supreme  court,  or  the  president  or  anv  two 
"judges  of  the  court  of  common  pleas  for  the  county  where 
"  the  debtor  resides^  The  eighteenth  section  is  more  extensive, 
and  gives  relief  to  "  all  persons,"  (inhabitants  or  not)  "  that 
"  shall  be  in  actual  confinement  bv  adversary  process,  without 
"  collusion  w  ilh  the  plainliff."  Those  persons  may  "  at  the  next 
**  term  after  such  confini  ment,"  petition  to  be  discharged, 
"  agreeably  to  the  true  spirit  and  meaning  of  the  aforesaid  scc- 
•'  tlons  of  this  act."  On  a  law  so  loosely  drawn,  the  court  must 
put  such  a  construction  as  is  mo«t  reasonable,  and  least  inconvc- 


592  CASES  IN  THE  SUPREME  COURT 

1 809.      nient.  It  appears  to  us  that  the  obvious  meaning  of  "  petitioning 
77~~     ,    ,  "  the  court  at  the  next  term  after  confuiement,"  restrains  the 

V  ROXAI.L  S  ,    .  ,  ' 

Case,  petitioner  to  the  court  by  virtue  of  whose  process  he  is  confined. 
It  is  also  the  most  convenient;  for  it  would  be  attended  with 
very  great  inconvenience  to  bring  parties  and  witnesses  to  the 
supreme  court  from  all  parts  of  the  state.  If  the  law  clearly 
gave  the  debtor  a  right  to  petition  this  court,  the  argument 
from  inconvenience  would  be  of  no  avail.  But  where  the  avoid- 
ing of  inconvenience  accords  with  the  most  natural  construc- 
tion of  the  words  of  the  law,  it  is  entitled  to  considerable 
weight. 

We  arc  of  o])inion,  on  the  whole,  that  the  case  of  the  peti- 
tioner is  not  such  as  authorizes  us  to  proceed  on  his  petition, 
and  he  must  be  remanded  to  the  custody  of  the  sheriff"  of 

Petitioner  remanded. 


Tuesday,  GaRRIGUES   agaijist  CoXE. 

April  4. 

THIS  was  an  action  upon  a  policy  of  insurance  for  600 
surance  "  nt  dollars,  upon  the  brig  MallevUlc  valued  at  2000  dollars,  at 

and  from,"  and  from  Cape  Francois  to  Philadelphia.  The  policy  was  ef- 
Qfgg^^^.Q^j]^j\  fected  on  the  11th  December  1801,  and  contained  the  following 
ness  must  be  special  memorandum.  "  If  the  above  vessel,  after  a  regular 
the  com-  "  survey,  should  be  condemned  for  being  unsound  or  rotten^ 
mcnccmcnt  *'  the  underwriters  shall  not  be  bound  to  pay  their  subscrip- 
i^ndifbe-'  "  tions  upon  this  policy."  The  declaration  set  forth,  that  on 
iweenthat  the  11th  November  1801,  while  the  brig  was  proceeding  on 
sailing' of  tlie  ^^J*  voyage,  she  sprung  a  leak,  and  was  by  and  through  the 
vessel  slic      mere  danger  of  the  seas,  greatly  damaged;  so  that  she  was 

becomes  un-     i  i-        ,  /^  ?-.  •  i  i  r  i  /- 

fit  for  sea      Obliged  to  retum  to  Cape  rrancois^  and  was  there  round  unfit 

without  the   to  proceed,  and  that  it  would  cost  more  to  repair  her  than  she 

fault  of  the  ,  ,  ,  ,  ,  ... 

assured,  and^^as  worth;  whereupon  she  was  sold  at  public  auction,  and 

is  afterwards  produced  only  242  dollars  50  cents. 

lost,  the  as-    *  •  .   •     ,    i     r  l         i  •    r   •        • 

sured  may  f  he  cause  was  tried  belore   the  chief  justice,    at    a    nisi 

i-ccover.         prius    in  March  last,  when  the   following  facts  appeared  in 
upon  vessel    evidence.    The  Malleville  sailed   from   Philadelphia  the  23d 

contained  a 

<Liuse,  that  if  after  a  reg'ular  survey  slic  shoidd  be  condemn(;d  for  being-  vn.-iound  ov  rotten, 
the  underwriters  should  not  be  bound  to  i)ay  theii-  subscriptions.  Held,  that  tlie  survey 
«nd  condemnation  must  siiew  unsoundness  from  decay,  and  not  from  accident;  and  tliere- 
fore  tlie  clause  is  not  u  bar,  if  the  survey  shews  that  the  unsoundness  proceeded  from  the 
gnawing-  of  rats. 
A  leak  occasioned  by  rats,  without  the  neglect  of  the  captain,  is  a  peril  within  the  policy. 


ft 

3b 


OF  PENNSYLVANIA.  593 

September  1801,  and  arrived  at  Cape  Francois  the  12th  October.      1809. 
On  the  10th  November  1801,  she  sailed  upon  the  voyage  in-' 
sured;  and  on  the  next  day,  without  any  bad  weather,  sprung 


Garui- 

CUES 

a  leak,  in  consequence  of  which  she  put  back,  and  arrived  at  -v. 
the  Cape  l\it  15th.  After  her  cargo  was  taken  out,  a  survey  *-oxf.. 
^as  held  upon  her  on  the  20th,  by  order  of  the  tribunal  de 
premiere  instance;  and  the  surveyors  reported,  that  they  had 
caused  four  streaks  of  plank  to  be  taken  from  her  waist,  from 
stem  to  stern  on  both  sides,  and  found  that  they  were  in  a  bad 
situation  at  the  load  water  line,  as  well  as  the  ribs  and  tim- 
bers, which  had  been  eaten  by  the  rats,  and  were  totally  unfit  to 
receive  the  nails  for  replacing  the  planks.  They  recommend- 
ed several  repairs,  which  they  estimated  would  cost  about  600 
dollars;  but  thought  that  the  captain  should  not  incur  the  ex- 
pense, until  by  another  survey  it  should  be  ascertained  that 
the  brig  required  no  others.  The  report  was  confirmed,  and 
another  survey  ordered,  which  was  held  on  the  30th.  The  sur- 
veyors then  reported,  that  they  had  ripped  off  part  of  the  waist 
plank,  and  found  the  plank  and  timbers  to  be  very  inferior; 
that,  upon  finding  this,  they  thought  it  useless  to  continue  rip- 
ping, having  already  seen  sufficient  to  prove  that  the  brig  was 
in  so  bad  a  state,  that  the  necessary  repairs  would  exceed  her 
value  when  repaired.  They  therefore  recommended  an  aban- 
donment of  the  vessel,  and  that  she  should  be  condemned  and 
sold  at  public  auction  for  the  benefit  of  the  concerned.  This 
report  also  was  confirmed,  the  vessel  condemned  and  sold,  and 
the  net  amount  sales  242  dollars  50  cents.  One  of  the  sur- 
veyors, whose  deposition  was  read  upon  the  trial,  swore  that 
on  the  first*  survey  they  could  not  find  the  leak.  On  the 
second,  they  directed  some  of  the  outward  planks  to  be  taken 
off,  and  pait  of  her  ceiling  to  be  opened,  and  tlu\-  found  eight 
timbers  so  much  rat-eaten,  as  not  to  hold  nails  to  replace  the 
plank;  hut  from  t/uir  (rrrirral  state,  theij  were  not  so  defective, 
except  from  being  eaten  by  the  rats,  as  to  render  her  unfit  for 
sea.  He  was  of  opinion  that  the  leak  which  caused  her  return, 
was  produced  l)y  the  rats  gnawing  her  linil)ers,  and  principally 
her  outward  plank,  and  not  from  atiij  rottenness;  that  she  might 
have  been  repaired  in  the  United  States,  but  that  at  Cape  Fran- 

'  Tlif  stirvcy  licrc  spukcn  of,  w.is  proljiilily  a  Hnrvcy  held  oa  the  IZtli  ^o- 
vember,  wlicii  tlic  siincyors  cutild  di'S'-fivrr  nntliiiij^,  tlir  rarpo  biiiii^  still  on 
l»oard. 


COXE. 


594  CASES  IN  THE  SUPREME  COURT 

1809.      ^oi*  the  carpenters  asked  2000  dollars.  He  thought  however, 
Garri-    ^^^^^  *''  ^^^^  impossible  the  impression  by  the  rats  could  have 

GVEs  ^(^cn  made  after  she  left  the  CapCy  or  in  /ess  than  three  or  four 
V-  7veeks;  that  from  the  appearance  of  the  holes  and  rat  nests, 
the  rats  must  have  been  there  still  longer;  and  that  she  was  not 
seaworthy  at  the  time  of  the  second  survey,  or  when  she  left 
the  Cope.  He  afterwards  saw  her  at  Havannciy  in  the  possession 
of  a  person  who  had  brought  her  from  the  Cape,  laden  with 
salt,  having  merely  put  in  five  new  timbers,  and  renewed  some 
of  the  outward  plank,  to  patch  her  up  for  the  voyage.  Another 
witness  also  saw  her  at  Havmma,  where  she  was  hove  down. 
He  swore  that  her  bottom  was  sound,  though  her  sheathing 
was  wormeaten;  that  from  any  thing  that  appeared  she  was 
seaworthy,  and  he  should  not  have  been  afraid  to  sail  in  her. 
That  she  there  received  no  other  repairs  but  a  new  sheathing, 
which  cost  450  dollars;  and  that  she  then  brought  a  cargo  of 
molasses  in  safety  to  Philadelphia. 

Upon  this  case  the  defendant's  counsel  opposed  the  claim, 
1.  because  the  vessel  was  proved  not  to  have  been  seaworthy 
at  the  time  oj" sailing-  from  Cape  Francois^  which  was  the  point 
of  time  to  which  the  warranty  of  seaworthiness  applied;  or,  at 
least,  that  having  proved  her  unseaworthiness  at  that  time,  it 
threw  upon  the  assured  the  proof  that  she  was  seaworthy  when 
the  risk  commenced.  2.  Because  the  survey  and  condemnation 
were  a  bar  under  the  special  memorandum.  3.  Because  the 
eating  of  rats  was  not  a  peril  within  the  policy. 

The  Chief  Justice  charged  the  jury,  1.  that  the  insurance 
commenced  as  soon  as  the  vessel  had  been  safely  moored 
twenty-four  hours  at  Cape  Francois;  and  that  the  implied  war- 
ranty of  seaworthiness  must  be  referred  to  the  same  time.  If 
between  the  commencement  of  the  insurance  and  the  sailing 
of  the  vessel,  she  became  unfit  for  sea  without  the  fault  of  the 
plaintiff,  and  was  afterwards  lost  b)'  the  perils  of  the  sea,  the 
plaintiff  was  entitled  to  recover.  2.  With  regard  to  the  con- 
struction of  the  policy,  he  said,  that  unless  the  survey  shewed 
that  she  was  unsound  or  rotten^  he  did  not  think  the  plamtlff 
was  barred  of  recover)'  by  force  of  the  policy  onli/.  As  for  in- 
stance, a  vessel  might  be  so  disabled  as  not  to  be  worth  repair- 
ing, in  consequence  of  sudden  accidents,  such  as  loss  of  masts, 
breaking  of  her  timbers  by  accident,  without  any  decay  of  the 
wood.  As  to  unsoundness  by  decaij^  it  might  be  very  reasonable 


COXE. 


OF  PENNSYLVANIA.  595 

to  agree  that  the  survey  should  be  sufficient  evidence  of  the      j  gog. 
state  of  the  vessel  at  the  commencement  of  the  risk;  but  such  "q^rrj. 
agreement  would  be  very  absurd,  if  applied  to  injuries  arising      gues 
from  sudden  accidents  and  the  like.  If  the  survey  should  say      ^  t- 
she  was  unsound  and  no  more^  the  plaintiff  would  be  barred. 
But  if  the  whole  survey  taken  together  shewed  a  defect  arising 
from  an  accident,  and  not  from  decay,  he  thought  the  case 
would  be  different,  and  that  the  plaintiff  would  not  be  barred. 
Upon  the  last  point  his  Honour  said,  that  supposing  the  leak  to 
have  been  occasioned  by  the  eating  of  rats,  he  was  of  opinion 
that  it  was  a  risk  within  the  policy. 

The  jury  found  for  the  plaintiff,  seven  hundred  and  twen- 
ty one  dollars  damages. 

Burd^  for  the  defendant,  moved  for  a  rule  to  shew  cause  why 
there  should  not  be  anew  trial, upon  the  ground  of  a  misdirec- 
tion to  the  jury;  and  also  because  the  verdict  was  contrary  to 
evidence.  And  in  support  of  his  motion,  he  now  made  the 
three  points  upon  which  the  cause  was  argued  at  nisi  prius. 

Upon  the  first,  he  contended  that  the  implied  warranty  of 
seaworthiness  was  coeval  not  with  the  risk,  but  with  the  sailing 
of  the  vessel.  There  is  in  the  contract  of  insurance  an  implied 
agreement,  that  every  thing  shall  be  in  that  condition  in  which 
it  ought  to  be.  Park  220,  and  of  course  wlwu  it  ought  to  be; 
because  what  should  be  its  condition,  must  be  judged  of 
with  relation  to  the  time  when  the  condition  becomes  material. 
Upon  an  insurance  "  at  and  from,"  it  is  not  necessary  to  have 
a  crew  in  port,  or  cables  and  anchors  at  the  wharf;  for  that 
alone  which  is  material  in  these  situations,  respectively,  is  war- 
ranted, and  she  is  portworthy  without  crew  or  cables.  Hut  sea- 
worthiness, strictly  speaking,  is  a  capacity  to  bear  the  ordinary 
perils  of  the  voyage;  it  has  no  reference  to  any  place  but  the 
sea,  nor  to  any  lime  but  the  sailing;  and  it  is  therefore  the  in- 
stant she  sails  on  her  voyage,  that  this  warranty  attaches,  be- 
cause it  is  only  then  that  it  becomes  material.  If  the  warranty, 
in  a  policy  "  at  and  from,"  attaches  at  the  beginning  of  the 
risk,  the  insurance  is  void  if  at  that  time  she  is  receiving  re- 
pairs; and  there  can  be  no  recovery  though  she  is  sea^vorthy  at 
the  time  of  sailing.  But  the  case  of  Forbes  v.  Wilson^  {a)  is 

(a)  Parh  229.  Hth  r<iit.  rotr 


59G  CASES  IN  THE  SUPREME  COUHT 

1809.      Hutly  the  other  way.  In  Eilcn  v.  Par/ihison,  («)  loi-d  Mansfield 

—^T""""  said  it  was  suflicicnt  if  the  ship  was  tight,  stanch,  and  strong, 

CUES      ^'  f^^^  ^^'"^  of  sailing;  so  in  Shoolhred  v.  Nutt.  (/;)  The  decision 

T.         in  the  case  of  the  Mills  frigate,  went  upon  the  same  ground. 

Cox£.     Marshall  ::>7'1. 

But  the  jury  were  wrong,  whichever  way  the  point  be.  We 
proved  her  not  to  be  seaworthy  at  the  time  of  sailing;  and  the 
facts  raised  a  violent  presumption  that  she  was  not  so  at  the 
commencement  of  the  risk.  The  plaintiff"  gave  no  evidence  to 
rebut  it,  though  the  burden  of  proof  was  on  him;  for  the  ex- 
istence of  a  leak  immediately  after  sailing,  and  without  bad 
weather,  threw  upon  him  the  proof  of  her  seaworthiness  when 
the  risk  commenced.  Marsh.  365,  Park  221. 

In  the  second  place,  he  argued  that  the  survey  and  condem- 
nation were  a  flat  bar.  The  surveyors  report  that  the  brig  was 
in  so  bad  a  state,  mauvais  etat^  that  her  repairs  would  cost  more 
than  she  would  be  worth  when  repaired.  'I'his  is  the  very 
phrase  to  indicate  unsoundness.    1  Valin  657, 1  Emerig.  583. 

Upon  the  third  point,  he  contended  that  no  damage  except 
by  the  act  of  God,  that  is,  inevitable  accident,  could  be  consi- 
dered a  peril  of  the  sea.  Perils  of  the  sea  are  such  accidents  as 
human  prudence  cannot  guard  against;  Park  61,  Marsh.  416; 
for  if  they  can  be  guarded  against,  it  is  laches  and  negligence, 
and  the  remedy  is  against  the  party  in  fault,  and  not  against  the 
insurer.  Poth.  on  Ins.  66.  sec.  64.,  2  Fali)i  79.  art.  28.  The 
question  then  is,  whether  the  eating  of  rats  is  not  chargeable 
to  the  captain's  neglect.  Dale  v.  Hall,  (c)  is  in  point.  There 
a  hoy  man  undertook  to  carry  goods  from  one  port  to  another; 
and  the  rats  made  a  leak,  in  the  hoy,  whereby  the  goods  were 
spoiled.  It  was  held  to  be  negligence  in  the  hoy  man,  and  he 
answered  the  damage.  Sir  William  yoncs^xxX.?,  it  upon  the  foot- 
ing of  ordinary  negligence;  Jones  on  Bail  104;  and  the  rule 
laid  down  by  Roccus^  and  adopted  by  others,  that  the  captaiii 
shall  be  excused  if  he  has  cats  on  board,  is  itself  an  illustration 
of  the  principle.  Abb.  on  Ship.  159.,  Marsh.  157.,  1  Emerig. 
377.  Here  there  was  no  evidence  of  an  endeavour  to  expel 
them  from  the  brig.  But  whether  or  not  the  captain  is  excu- 
sed, this  is  not  a  peril  of  the  sea.  It  is  clearly  much  less  so  than 
the  eating  of  a  ship's  bottom  by  worms,  which  arc  a  creature 

Co)  Dou^.  703.  (Z.)  Park  229.  tt.  ( c)  1  Wik.  281. 


OF  PENNSYLVANIA.  597 

of  the  element,  and  increase  its  danger.  But  they  were  held  not      j  S09. 
to  be  a  peril  of  the  sev.,  in  I^o/ii  v.  Parr,  (a)  Garki- 


GUES 


Hallowell  and  IngersoU  for  the  plaintiff.  The  risk  upon  the         'v- 
hri^  commenced  the  13th  October^  twenty  four  hours  after  her     ^°^''- 
an  ival  at  the  Cape.  Her  condition  ut  that  time  was  left  to  the 
jury,  and  they  were  warranted  in  presuming  her  to  have  been 
seaworthy,  because  she  carried  out  a  cargo  in  safely,  and  the 
evidence  fixed  the  injury  to  a  subsequent  day.  We  agree  that 
from  the  circumstances  of  the  leak,  the  burden  of  proof  was  on 
the  plaintiif;  but  when  it  appeared  that  the  loss  might  be  attri- 
buted to  an  unforeseen  misfortune,  the  onus  probaudi  was  shitt- 
ed to  the  defendant.  Patrick  v.  Hallct.  {b)  The  question  is  then, 
whether  seaworthiness  at  the  commencement  of  the  risk  is  suf- 
ficient upon  an  insurance  '"■  at  and  from."  The  argument  on  the 
other  side  proceeds  upon  a  mistake  in  not  distinguishing  be- 
tween an  insurance  "  from,"  and  an  insurance  "  at  and  from." 
When  lord  Mamfidd  says,  it  is  sufficient  if  a  vessel  be  sea- 
worthy at  the  time  of  sailing,  and  that  if  she  sail  without,  there 
is  no  valid  policy,  he  is  evidently  speaking  of  an  insurance 
"  from,"  where  the  time  of  sailing  is  the  commencement  of  the 
risk;  and  so  he  is  understood  by  Park  228  b.  note.  But  there 
is  not  a  dictum  in  existence,  that  upon  an  insurance  "at  and 
"  from,"  the  vessel  need  not  be  tight  and  strong  when  the  risk 
commences.  If  she  need  not,  a  loss  in  port  might  be  recovered 
under  the  policy,  though  it  arose  from  the  defect  of  the  vessel. 
If  then  the  vessel  must  be  and  is  in  a  proper  condition  when 
the  policy  attaches,  and  by  a  peril  insured  against,  she  is  pre- 
vented from  being  so  at  the  time  of  sailing,  to  vitinte  the  policy 
on  account  of  unseaworthiness  at  sailing,  is  to  defeat  it  by 
one  of  its  own  perils.    The  case  of  the  M'llh  frigate  (c)   is  de- 
cisive. The    objection   to  that   vessel  was  that  she  was  not 
tight,  stanch,  and  strong.  Mr.  Park  says,  that  the  judgment  for 
the  assured  turned  upon  this,  that  "  the  evidence  did  not  prc- 
"  cisely  prove  that  the  ship  was  not  seaworthy  at  the  time  of  the 
"  insurance  takinjr place  on  the  \st  April  1 764,  on  her  arrival  at 
"  Nevis,  but  only  that  she  was  so  «^  the  time  of  her  xai/inj^  on 
"the  2r)th  full/.    And  the  court  uneciuivocally  declared  that  a 
"  ship  that  is  not,  at  the  commencement  of  the  insurance^  in  a  fit 

(a)  1  Lsp.  444.  (A)   1  Johnton  248,  ^•)  Parh  22H  Sth  edit. 

Vol.  I.  4.  CI 


598  CASUS  liN  THE  SUPREMK  COURT 

1809.      *'  condition  to  perform  her  voyajje,  is  not  a  fit  subject  for  insu- 
T; ''  ranee."  In  Forbes  v.  Wilson  the  underwriters  took  a  ground 

*-*AliHI-  .  ,  ,     r         .  »  1  111  U 

GUES       directly  opposite  to  the  delendiuii  s;  they  contended  that  she 
r.         must  be  ready  for  sea  when  the  pohcy  attached;  but  the  answer 
CoxK.      ^Q  (^i^.^j  ig^  ^l^.jt  it  is  not  necessary  that  she  should  be  ready  lor 
sea,  but  she  must  be  sound. 

A  survev  and  condemnation  have  no  effect  under  the  me- 
morandum, vmless  they  proceed  upon  the  rottenness  and  un- 
soundness of  the  vessel  in  the  nature  of  decay.  The  reason  of 
the  stipulation  is  evident.  When  the  timbers  perish  from  natu- 
ral decav,  it  may  be  impossible  to  fix  whether  the  unsoundness 
was  produced  by  the  voyage,  or  before.  The  insurers  have 
cleared  themselves  of  the  difficulty.  But  where  the  unsound- 
ness mav  easily  be  brought  home  to  a  peril  within  the  policy, 
the  reason  fails.  Here  the  condemnation  was  in  consequence  of 
the  eating  of  rats,  and  the  difficulty  of  getting  repairs.  The  sur- 
vey says  she  was  en  mauvais  etat^  but  not  pourri^  gate^  or  cor- 
rompu;  and  a  witness  swore  that  her  bottom  was  sound,  and 
that  with  an  expense  of  450  dollars,  she  brought  a  heavy  cargo 
to  Philadelphia.  If  the  defendant  sets  up  a  flat  bar,  he  must 
bring  his  case  within  the  very  words  of  the  clause;  it  will  not 
answer  even  if  the  condemnation  assign  a  mixed  reason,  as  un- 
soundness, and  the  want  of  docks  to  repair.  Watson  v.  Ins.  Co. 
N.  A.  {a) 

A  leak  is  a  peril  insured  against,  and  the  only  question  is 
whether  it  is  excepted  out  of  the  general  perils  of  the  sea, 
Avhen  it  is  occasioned  by  rats.  The  underwriters  are  answer- 
able for  every  accident  at  sea,  not  attributable  to  the  fault  of 
the  owner  or  muster.  The  liability  of  vessels  to  the  depredation 
of  rats,  is  perfectly  well  known;  no  human  prudence  can  pre- 
vent these  animals  from  making  their  entry;  and  the  injury 
here  was  inevitable,  because  it  was  unforeseen.  The  case  of 
Dale  v.  Hall  was  between  a  hoyman  and  his  customer;  and 
the  law  between  these  parties  can  form  no  rule  for  the  con- 
tract of  insurance.  The  hoyman  is  discharged  by  accidents 
that  bind  the  underwriter,  and  vice  versa.  The  one  contract  is 
governed  by  rules  of  public  policy,  the  other  by  the  intention 
of  the  parties.  The  case  however  stands  alone;  it  is  not  sup- 
.  ported  by  prior  authorities,  nor  has  it  been  since  recognised 

'.a)  Cir.  Ct.  U.  S.  Pcnn.  Dint. 


OF  PENNSYLVANIA.  599' 

:n  any  judicial  decision.     [C.  J.  Tilghman.  IVTy  mind  at  the      1809. 
trial  rested  simply  on  the  abstract  point,  whether,  supposing    7^ 
the  captain  not  to  have  been  in  fault,  this  was  such  an  injury  as       gues 
the  underwriters  must  answer  for.]  There  was  not  a  sb.adow  of        ^'• 
evidence  that  the  captain  was  in  fault.  Then  as  to  Rohlv.  Parr:     ^°^s- 
It  turned  upon  an  understanding  among  the  merchants  of  Z,07i- 
don^  that  the  eating  by  worms  upon  the  voyage  insured,  was 
not  within  the  policy.  The  whole  was  left  as  a  fact  to  the  jury. 
If  it  decided  a  principle  of  law,  we  deny  its  authority;  it  is  in 
direct  opposition  to  the  opinion  of  Emerij^on^  and  the  case  of 
the  King-  Solomon^  referred  to  by  him.  1  Emer.  537. 

Levy  in  reply.  Unseaworthiness  is  such  a  state  of  the  vessel, 
as,  without  reference  to  the  possibility  or  impossibility  of 
avoiding  it,  renders  her  unfit  for  her  destined  voyage.  When  is 
it  material  to  the  contract  that  the  warranty  should  be  true? 
Not  when  the  vessel  is  in  harbour.  She  may  be  receiving  re- 
pairs. The  policy  nevertheless  covers  her,  if  it  be  "  at  and 
"from;"  and  of  course  the  warranty  cannot  then  attach,  for 
she  has  nothing  like  seaworthiness  about  her.  'I'here  is  no  get- 
ting away  from  the  case  oi Forhes  v.  Wilson.  It  was  an  insurance 
upon  a  ship  "  at  and  from"  Liverpool^  which  at  the  time  the 
policy  was  made,  was  not  in  a  condition  to  go  to  sea,  but  was 
undergoing  material  repairs.  Lord  Kenijon  held  that  under  the 
words  "  at  and  from"  it  was  sufficient  if  the  ship  was  seawor- 
thy at  the  time  of  sailing,  for  from  the  nature  of  the  thing  the 
ship  while  at  the  place,  probably  must  be  undergoing  some  re- 
pair. If  it  is  sufficient  then,  so  it  is  material.  The  warranty 
cannot  bind  as  to  the  assured  at  one  time,  and  as  to  the  insurer 
at  another.  The  inconveniences  of  the  principle  are  nothing;  but 
they  would  be  all  the  greater,  if  the  warranty  attached  with  the 
risk.  A  vessel  may  arrive  at  a  foreign  port,  with  a  leak  that 
cannot  be  stopped  in  twenty-four  hours.  The  policy  is  void. 
She  may  be  struck  with  ligiiining  the  day  she  arrives;  it  takes 
a  week  to  repair  her,  and  she  then  sails  seawortiiv,  and  is  lost: 
there  can  be  no  recovery.  And  so  in  many  others.  There  has 
been  no  proof  however,  that  the  brig  was  sound  at  the  com- 
mencement of  the  jifik;  and  the  plainlilf  should  have  been  held 
to  strict  and  cogent  proof,  after  such  a  loss.  Marsh.  3G7.  It  did 
not  appear  in  what  condition  she  landed  her  outward  cargo. 
From  the  depositions,  it  was  probable  the  rats  were  in  her  at 


(300  CASES  IN  THE  SUPREME  COURT 

1809.      that  time,  and  had  given  her  a  death  blow.  Upon  such  evi- 

~~Z  dence  the  jury  had  no  rio-ht  to  presume  seaworthiness;  and  as 

Garri-  ^     ■  o  I 

Gt'Es       there  are  other  causes  upon  tliis  policy,  we  should  be  sent 

T.  back  to  investigate  this  matter  further. 

CoxE.  ^5  ^.Q  tjjg  memorandum:  the  timbers  were  reported  to  be 

unsound  and  rotten;  they  would  not  liold  the  nails,  and  she 
was  condemned  for  this  cause.  We  therefore  do  bring  our- 
selves within  the  words  of  the  clause.  The  cause  of  the  defect 
is  of  no  consequence;  the  parties  have  not  said  that  it  is;  and 
as  in  the  common  case  of  a  warranty,  it  is  therefore  immate- 
rial. Rotten  and  unsound  however,  mean  different  things;  they 
embrace  all  causes.  I  do  not  agree  the  case  of  Watson  v.  Ins. 
Co.  Nor.  Am.^  that  if  by  the  survey  and  condemnation  she  is 
brought  expressly  within  the  memorandum,  the  assignment  of 
additional  causes  will  take  her  out. 

Upon  the  last  point  it  has  been  conceded,  that  the  insurers 
are  not  answerable  for  the  neglect  of  the  master.  The  case  of 
Da/e  V.  Hall  is  express  that  the  gnawing  of  rats  is  ordinary 
negligence;  no  matter  between  what  parties,  or  upon  what  con- 
tract. It  is  held  not  to  be  inevitable  accident,  and  that  is 
enough. 

The  opinion  of  the  court  was  delivered  by 

TiLGHMAN  C.  J.  In  this  cause,  as  in  many  others,  we  feel 
the  loss  of  our  brother  Smith.  As  the  cause  was  tried  before 
me,  it  was  not  my  intention  to  give  any  opinion,  but  in  case  of 
necessity.  It  has  now  become  necessary.  I  shall  only  say,  how- 
ever, on  the  points  of  larVy  that  I  have  found  no  reason  to  alter 
the  opinion  delivered  on  the  trial;  and  in  that  opinion  judge 
Brackenridj^e  concurs  with  me.  The  law  being  settled,  the 
merits  of  the  case  rest  on  the  facts,  whether  the  vessel  was  in 
proper  condition  at  the  time  the  injury  from  the  rats  took  place, 
and  whether  this  injury  took  place  before  or  after  the  com- 
mencement of  the  risk  insured  against,  and  without  the  ne- 
glect of  the  captain.  To  these  points  the  parties  gave  very  little 
evidence  on  the  trial,  nor  did  their  attention  seem  to  have  been 
turned  towards  them.  All  the  proof  made  by  the  plaintiff  was 
that  the  vessel  performed  her  outward  voyage  in  good  time; 
but  as  to  her  condition,  or  the  condition  of  her  cargo,  there  was 
no  evidence.  It  appears  that  there  are  several  more  actions  de- 
pending on  the  same  policy;  and  now  that  it  is  understood^,  on 


OF  PENNSYLVANIA.  601 

>vhat  points  the  cause  turns,  it  may  be  expected  that  the  merits      1809. 
will  be  more  fully  investigated.  The  court  are  of  opinion  that"~^^^^^ 
it  will  be  most  conducive  to  justice  to  hold  the  present  case      gues 
under  advisement,  till  a  trial  is  had  in  one  of  the  other  actions.         v. 
If  the  jury  find  again  for  the  plaintiff,  there  will  be  no  reason     Coxe. 
for  a  new  trial  in  this  case;  but  if  a  verdict  shall  be  given  for 
the  defendant,  it  will  be  proper  to  grant  a  new  trial,  unless  the 
parties  themselves  agree  on  some  other  arrangement. 

Yeates  J.  took  no  part  in  the  cause,  being  related  to  one 
of  the  parties;  but  he  said  at  the  conclusion  of  the  court's  opi- 
nion, that  he  was  perfectly  satisfied  with  it. 

Cur,  adv.  viilt. 


601 
598 
599 
403 

298 
361 
341 
518 


Commonwealth  against  D  u  a  n  e .  Tuesday, 

^  April  4th. 

THE  defendant  was  indicted  for  a  libel  of  the  late  gover-  An  act  of  as- 
,,„  •      ,  •       /r   ■    1  •  1  ••         •       scmblv  di- 

^^1  nor  iV-Kean  in  ins  ojpctal  capacttij;  and  at  a  nisi  pi"ius  ,,^^,^5  ".c  ^],y^ 

holden    bv  2'cates   J.    in  December  XzsX.^  was  convicted  upon  fiom  and 

-  .     ,  ,       aittr  the 

one  count.  His  counsel  then  moved  in  arrest  ot  judgment,  be-p.,s^in^of 

cause  although  the  indictment  charged  the  libel  to  be  ;«a/icioz/*,  the  act  no 

.       ,.  ,  .  1        y-  J       person  shall 

scandalous,  and  seditious,  it  did  not  charge  it  to  be  ya/.ve,  be  subject  to 

which  thev  held  to  be  necessary  under  the  constitution  of  thisf^.^'^fy^'"" 

state.  The  motion  was  argued  with  great  ability  at  December  m^nx.,"  for  a 

term:  and  a  second  argument  was  directed  at  this  term,  itl!"'"^'^"^-"""^' 
•  <->  .....  tcnccatcom- 

being  understood  that  the  court  was  divided  in  opinion;  butmonlaw. 
upon  calling  up  the  case,  it  was  suggested  that  an  act  of  as-  ^|/^'''.J,''^^,^,j^ 
scmblv,  recently  passed,  had  put  an  end  to  the  prosecution;  to  a pioscc-u- 
and  the  court  ordered  an  argument  upon  this  previous  point, ^'''"  "'*''=" 
before  thev  should  hear  anv  further  discussion  of  the  merits. conniunccd 
The  act  in  question  is  entitled.  An  act  concerning  '''>^"ls,|'"*j.J,^"^'^'^ 
and  was  passed  the  IGth  March  1809.  It  contains  but  two  sec- iKforc  tlit- 

•  «  c  It  pashintr  of 

ttons,  as  follows.  !h,-act.lM.i 

Sect.  1.  Be  it  enacted,  &C.  That  from  and  after  the  passing  in  wliichno 
of  this  act,  no  person  shall  be  .subject  to  prosecution  by  iNmcT-||"'j.*]|^^^ 
MENT  in  any  of  the  courts  of  this  commonwealth,  for  the  pub- i>ronounccJ 
licalion  of  papers  examining  the  proceedings  of  the  legislature 
or  any  branch  of  government,  or  for  investigating  the  official 
conduct  of  officers  or  men  in  a  public  capacity. 


DuANE. 


602  CASES  IN  THE  SUPREME  COURT 

1809.  Sect.  2.  That  in  all  actions  or  criminal  prosecutions  of  a  U- 

Common-  ^^^■>  ^'**^  neft-ndant  may  plead  the  truth  thereof  in  justification, 
WEALTH  or  give  the  same  in  evidence;  and  if  07111  prosecution  bij  indict- 
ment^ or  any  action,  be  instituted  against  any  person  or  persons 
contrary  to  the  true  intent  and  meaning  of  this  aet^  the  defend- 
ant or  defendants  in  such  action  or  indictment  may  plead  this 
act  in  bary  or  give  the  same  in  evidence  on  the  plea  of  not  guilty. 
Provided  that  this  act  shall  be  and  continue  in  force  for  the 
term  of  three  years,  and  from  thence  to  the  end  of  the  next 
session  of  the  legislature. 

J^ush  for  the  defendant.  The  object  of  the  act  in  question  is 
to  take  away  a  crime  which  previously  existed,  and  therefore 
that  interpretation  is  to  be  adopted  which  favours  the  suffering 
party.  We  contend  that  it  is  retrospective,  that  it  terminates 
all  prosecutions  heretofore  commenced  for  libels  upon  the 
official  conduct  of  men  in  a  public  capacity.  At  the  same  time 
it  interferes  with  no  private  vested  right.  The  government 
alone  is  interested  in  the  prosecution  of  criminal  suits;  it  can 
terminate  them  at  any  stage  by  a  nolle  prosequi;  it  can  oblite- 
rate the  prosecuted  offence  from  the  penal  code;  and  provided 
it  leaves  to  the  citizen  his  civil  remedy  for  the  injury  that  is 
peculiar  to  himself,  it  violates  no  right  of  property,  and  it  of- 
fends no  principle  of  justice.  The  question  is,  what  was  the 
intention  of  the  legislature.  The  defendant  is  under  a  prosecu- 
tion bv  indictment  for  a  libel  of  governor  jlf-Kean  in  his  offi- 
cial capacity;  and  the  first  section  of  the  law  says,  that  from 
and  after  the  passing  of  the  act,  no  person  shall  be  subject  to 
prosecution  by  indictment  for  such  an  offf  nee.  Prosecution  has 
two  meanings.  The  one  is  confined  and  technical,  and  signifies 
the  form  or  mode  of  suit,  as  prosecution  by  indictment,  by 
appeal,  by  information;  instances  of  it  may  be  found  in  4  Bl. 
Comm.  289,  301,  312,  317,  335.  The  other  is  an  enlarged  ge- 
neral meaning,  indicating  the  whole  train  or  series  of  proceed- 
ings from  the  commencement  of  the  suit,  to  the  final  judgment 
or  sentence.  4  Bl.  Comm.  320,  1,  2.  337,  362.  It  is  in  this  sense 
we  speak  of  a  particular  stage  of  the  prosecution,  or  of  being 
discharged  for  want  of  prosecution;  and  so  it  is  emphatically 
used  by  Blackstone^  with  particular  application  to  this  case, 
when  in  the  beginning  of  one  of  his  chapters,  he  says:  "  We 
"  are  now  to  consider  the  next  stage  of  criminal  prosecution, 
"  after  trial  and  conviction  are  past,  which  is  that  of  judgment.''^ 


OF  PENNSYLVANIA.  603 

4  Bl.  Comm.  575.   Judgment  therefore  is  a  stage  of  the  prose-      igOQ. 
cution;  it  is  one  which  we  have  not  reached;  it  is  future  to  us;    (joji^^oj.. 
and  giving  "  shall"  its  strongest  effect  against  us,  we  must  still    wealth 
be  embraced  and  protected  by  it.  The  words  of  this  section         v. 
are  as  complete  an  arrest  of  judgment  as  if  the  law  had  said  no    Duane. 
person  shall  hereafter  be  subject  to  judgment  upon  an  indict- 
ment for   the  publication  in  question.   But  there  is  another 
ground  upon  which  judgment  must  be  ai-rested.  The  law  has 
actually  repealed  the  offence  of  publishing  libels  upon  the  offi- 
cial conduct  of  men  in  a  public  capacity.  There  is  no  longer 
such  a  crime  in  our  penal  code.   Now  nothing  is  more  certain 
than  that  if  a  statute  creating  an  offence  be  repealed,  all  pro- 
ceedings under  it  fall.  1  H.  H.  P.  C.  238,  291.  1  Haxvk.  P.  C. 
b.  1.  c.  40.  sec.  10.  United  States  v.  Passmore.  {a)  The  repeal 
does  not  merely  prevent  new  prosecutions;  it  cuts  up  existing 
prosecutions  by  the  roots;  no  one  can  be  punished  under  the 
statute,  unless  it  contains  a  saving  clause.  Miller's  case^  {b)  4  U. 
S,  Larvs  204.  What  is  the  ground  of  this  principle?  Simply 
that  the  offence  is  gone;  and  no  one  can  be  punished  for  what 
is  not  a  crime  at  the  time  of  punishment.  It  must  be  the  same 
if  an  offvince  at  common  law  is  repealed;  its  being  by  statute  is 
of  no  consequence.  It  is  the  repeal  of  the  offence  that  is  mate- 
rial. 

If  the  first  section  puts  an  end  to  the  prosecution,  nothing 
in  the  second  section  should  sustain  it;  for  the  whole  act 
must  stand.  An  argument  may  periiaps  be  drawn  from  the 
word  "  instituted"  as  synonymous  with  commenced;  but  no 
such  meaning  is  assigned  to  it  in  any  dictionary  of  reputation. 
It  is  defined  by  Johnson^io  fix,  to  establish^  to  settle;  and  even 
if  it  does  signify  to  commence,  it  is  not  used  in  such  a  tense  as 
to  mean  prosecutions  begun  afterwards  rather  than  before. 

As  to  constitutional  objections,  they  can  hardly  be  expec- 
ted. The  constitution  no  where  says  that  such  prosecutions 
shall  not  be  abolished.  It  merely  provides  for  the  security  of 
the  citizen,  by  allowing  him  to  give  the  truth  in  evidence  so 
long  as  such  prosecutions  shall  be  lawful. 

Levy  and  Inycrsoll  for  tiie  commonwealth.  Conslltutional 
objections  to  a  statute,  :«rr  of  a  nature  too  eml)arrassing  to  be 

frt)  4  DM.  373.  (i)  1  /r.  D'.ach.  451 


604  CASES  IN  Tlii:  SUPREME  COURT 

1809.      vesnitcd   to,   except  in   ;i  plain  case.    But  if   this  act  is  not 

Common-   ^mconstitutional,  it  approaches  so  closely  to  the  verge  of  it,  as 

WEALTH    to  deserve  no  liberality  of  construction.  By  the  first  section  of 

^'-         the  ninth  article,  the  constitution  declares  that  all  men  have  an 

DUANE.      •     J    r        -I  1        •    u^  X  1 

indefeasible  right  to  acqan-e,  possess,  and  protect  reputation; 
and  by  the  seventh  section,  in  prosecutions  for  the  pul)lication 
of  papers  investigating  the  official  conduct  of  officers,  the  truth 
thereof  may  be  given  in  evidence.  The  one  is  intended  as  a 
security  to  reputation;  the  other  as  a  regulation  of  the  means 
of  protection,  so  as  to  make  them  consist  with  the  interests  of 
truth  and  the  public.  Together  they  imply  that  nothing  shall  be 
done  to  prevent  either  the  acquisition  or  vindication  of  cha- 
racter. They  imply  a  continuance  of  all  the  sanctions  by  which 
character  is  defended;  and  of  course  the  instrument  of  either  a 
civil  or  criminal  prosecution  as  the  situation  of  the  culprit, 
or  of  the  prosecutor  may  demand.  To  expose  a  servant  of  the 
public  to  the  foulest  calumnies,  and  to  leave  him  no  redress 
but  a  civil  suit  against  a  person  who  may  have  been  selected 
for  his  poverty  to  be  the  libeller  of  virtue,  and  against  whom  a 
verdict  for  damages  would  be  a  solemn  mockery,  is  so  com- 
plete an  overthrow  of  the  means  of  protecting  character,  that 
if  the  right  remains,  it  may  be  said  to  be  without  remedy. 
Such  a  law  surely  deserves  not  to  be  extended  by  construction. 
It  is  contended  to  be  a  retrospective  act.  It  was  truly  said 
by  judge  Patterson  in  Calder  v.  Bull^  (a)  that  there  is  neither 
policy  nor  safety  in  such  laws;  they  neither  accord  with  sound 
legislation,  nor  the  fundamental  principles  of  the  social  com- 
pact; and  if  it  is  possible  so  to  construe  a  law  as  to  prevent 
this  effect,  it  is  the  duty  of  courts  to  do  it,  because  it  is  a  pre- 
sumption of  reason  and  justice  that  such  a  construction  best 
accords  with  the  views  of  the  lawmaker.  The  two  sections  of 
this  act  must  be  taken  together;  for  in  the  construction  of  a 
statute,  as  of  a  will,  every  part  should  have  its  influence  in  fix- 
ing the  meaning  of  the  whole.  The  1st  says  that  no  person 
shall  be  subject  to  prosecution  by  indictment.  This  cannot  re- 
fer to  the  mode  of  prosecution;  because  there  is  no  other  mode 
of  criminal  prosecution  known  to  our  law,  information  being 
abolished  by  the  constitution.  It  can  therefore  only  refer  to 
the  particular  stage  of  prosecution,  in  which  an  indi^ctment  is 

Ca)  3  Ball.  397.. 


OF  PENNSYLVANIA.  605 

preferred,    and  must  have  been  introduced  to  render  the  law      1809. 
prospective.    The  words  "  shall"  and  "'  from  and  after,"  for-  Coji^on- 
tify  this  position,  as  they  have  nothing  retroactive  in  their   wealth 
meaning.  This  section  then  does  not  repeal  the  offence;  it  merely         ■^• 
establishes  a  rule  for  the  future.  But  how  are  defendants  to  take       uane. 
advantage  of  the  rule?  The  2d  section  was  made  for  the  pur- 
pose of  giving  the  answer;  they  are  to  plead  the  act  in  bar,  or 
to  give  it  in  evidence  on  the  plea  of  not  guilty.  Here  is  another 
indication  of  the  stage  of  the  cause  to  which  the  act  applies. 
They  are  not  to  use  it  in  arrest  of  judgment,  but  before  trial; 
and  of  course  it  cannot  be  used  upon  a  prosecution  that  is  past 
trial.   If  however  any  thing  is  wanting  to  fix  thu  intention,  we 
have  it  in  that  clause  of  the  2d  section,   by  which  the  reined}'- 
is  confined  to  prosecutions  instituted  contrary  to  the  true  intent 
and  meaning  of  the  act.  Whatever  may  be  the  critical  meaning 
of  the  word  institute.,  its  legal  signification  always  is,  to  com- 
mence, or  begin;  and  how  can  a  prosecution    be    instituted 
against  the  spirit  of  the  act  unless  it  be  commenced  after- 
wards? We  have  then  the  words  of  the  first  section,  which  are 
prospective,  the  pleading  or  giving  in  evidence  of  the  second, 
which  is  before  or  at  the  trial,  the  reference  to  prosecutions 
instituted  against  the  spirit  of  the  act,  which  must  be  afterwards, 
and  a  reasonable  and  just  presumption  of  the  intention  of  the 
lawmakers,  all  conspiring  to  take  this  prosecution  out  of  th,e 
statute. 

Hof)kinson  in  reply.  The  law  unquestionably  provides,  that 
after  it  is  passed,  there  shall  be  no  such  offence  as  that  for 
which  the  defendant  is  indicted.  It  is  no  longer  an  offence  in 
Pennsiflvania.  It  cannot  lie  indicted,  it  cannot  be  punished,  it 
is  taken  out  of  the  |)cnal  code,  not  with  exceptions,  but  abso- 
lutely; and  yet  the  argument  is  that  this  judgment  cannot  be 
arrested,  and  that  the  defendant  must  be  sentenced  for  that 
which  at  the  moment  of  sentence  is  not  a  crime.  But  what 
are  the  words  of  the  law?  No  person  shall  be  subject  to  prose- 
cution bij  indictment;  that  is,  as  distinguished  from  civil  prose- 
cution; this  is  the  universal  language.  It  comes  then  to  a  sim 
pie  (|uestion  of  fact.  Is  the  defendant  now  subject  to  a  prose- 
cution by  indictment?  Is  he  under  it?  Docs  it  hang  over  )iim^ 
If  it  does,  the  law  is  \  iolatrd. 

Vol.  f.  Ill 


606  CASES  IN  THE  SUPREME  COURT 

1809.  The  argvimint  for  the  commonwealth  upon  the  second  sec- 

"(EoMMON^*'°"»  is  altogether  a  fallacy.   It  is,  that  the  right  is  merely  co- 
wealth    extensive  with  the  remedy  pointed  out;  and  because  the  latter 
^'-  refers  to  the  time  of  trial,  prosecutions  past  trial  cannot  be 

UANE.  intended  by  the  first  section.  If  this  be  so,  then  should 
the  defendant  even  in  a  subsequent  prosecution  happen  to 
slip  pleading,  or  pass  his  trial  without  vouching  the  act,  he 
must  be  sentenced  in  spite  of  the  law.  This  is  impossible.  The 
whole  design  of  that  section  is  to  save  an  argument  upon  the 
question  how  the  act  shall  get  to  the  knowledge  of  the  jury, 
whether  through  a  special  plea,  or  as  evidence  upon  not  guilty; 
and  upon  a  similar  question  much  time  was  consumed  upon 
the  trial  of  this  very  cause.  This  is  the  whole  extent  of  the 
2d  section,  or  else  the  first  is  a  dead  letter.  There  being  then 
an  end  to  the  prosecution  by  the  first,  and  nothing  in  the  second 
to  sustain  it,  the  consequence  is  plain;  and  it  is  all  the  plainer 
because  retrospective  acts  taking  away  offences  are  so  uni- 
formly favoured,  that  it  has  become  a  maxim  that  existing 
prosecutions  are  gone,  unless  there  is  a  saving  clause;  it  is 
only  with  reference  to  civil  suits  that  the  retrospect  of  a  law 
is  unjust,  because  it  trenches  upon  the  vested  rights  of  the 
citizen. 

TiLGHMAN  C.  J.  This  is  an  indictment  for  a  libel  against 
the  late  governor  M'-Kean,  in  his  official  capacity.  The  defen- 
dant was  convicted,  and  moved  in  arrest  of  judgment.  In  this 
situation  the  act  concerning  libels  was  passed,  the  object  of 
which  is  to  take  away  the  prosecution  by  indictment,  in  cases 
of  this  nature.  The  question  now  to  be  decided,  is,  whether 
the  court  can  proceed  to  give  judgment  on  the  indictment. 
The  counsel  for  the  commonwealih  have  raised  an  objection 
to  this  law,  on  the  ground  of  its  being  a  violation  of  the  ninth 
article  of  the  constitution.  Although  their  argument  was  rather 
faintly  urged,  it  is  proper  to  take  notice  of  it.  By  the  first  sec- 
tion of  the  ninth  article  it  is  declared,  tiiat  all  men  have  a  right 
of  acquiring,  possessing,  and  protecting  property  and  reputa- 
tion; and  it  is  supposed  that  the  protection  of  reputation  will 
be  less  perfect,  when  the  punishment  of  libels  by  indictment  is 
taken  away.  It  may  be  so ;  and  I  fear  it  will  be  so.  But  it  is 
sufficient  to  remark,  that  the  civil  remedy  by  actio?!  is  still  left 
unimpaired,  and  that  the  proceeding  by  indictment  is  not  the 


OF  PENNSYLVANIA.  607 

right  of  the  injured  portij^  but  of  the  public.  The  seventh  sec-      \  309, 
tion  of  the  same  article  provides,  that  in  prosecutions  for  the   r^^TT     T^ 
publication  of  papers  investigating  the  official  conduct  of  offi-    wealth 
cers  or  men  in  a  public  capacity,  the  truth  may  be  given  in         "v- 
evidence.  This,  say  the  counsel  for  the  commonwealth,  shews,    ■^^A'*^- 
that  it  was  understood  that  there  should  be  prosecutions  by  in- 
dictment. I  think  it  only  shews,  that  at  the  time  of  the  framing 
of  the  constitution,  such  prosecutions  were  lawful,  and  there 
was  no  reason  to  suppose  that  they  might  not  continue  to  be 
lawful;  but  there  is  no  ground  for  drawing  an  inference,  that 
the  constitution  intended  to  provide  for  the  continnmice  of  such 
prosecutions  for  ever.   It  was  intended  to  protect  the  defend- 
ant by  permitting  him,  when  prosecuted,  to  give  the  truth  in 
evidence;  but  there  is  no  intimation  that  it  should  be  unlawful 
for  the  legislature  to  take  away  the  prosecution  altogether. 

I  will  now  consider  the  act  of  assembly.  The  first  section 
enacts,  that  "  from  and  after  the  passing  of  the  act,  no  person 
'*  shall  be  subject  to  prosecution  by  indictment  in  any  of  the 
"  courts  of  this  commonwealth,  for  the  publication  of  papers 
"'  investigating  the  official  conduct  of  officers,  or  men  in  a  pub- 
*■'  lie  capacit) ."  The  prosecution  by  indictment  is  the  onl\r 
criminal  prosecution  of  such  offences  known  to  our  law ;  be- 
cause the  proceeding  by  information  is  forbidden  by  our  con- 
stitution. When  therefore  it  is  said,  that  a  man  shall  not  be 
subject  to  prosecution  by  indictment,  it  is  sa)  ing  that  he  shall 
not  be  subject  to  a7i7j  criminal  prosecution.  Now  what  is  a 
prosecution?  It  is  the  whole  proceeding,  including  the  judg- 
ment. In  the  case  before  us,  the  judgment,  the  most  material 
part  of  the  ])roseculion,  remains  to  be  given.  Can  the  court 
pronounce  judgment,  and  inflict  punishment,  wlien  the  law 
declares  that  the  defendant  shall  not  be  subject  to  prosecution? 
I  do  not  see  how  they  can. 

But  it  is  contended  by  the  counsel  for  the  prosecution,  that 
although  it  might  be  improper  to  pronounce  judgment,  if  the 
matter  rested  on  the  first  section  of  the  law,  yet  taking  into 
consideratit)n  the  second  section,  it  will  appear  on  the  whole, 
that  there  was  no  intent  10  give  relief  in  case  of  prosecutions 
commenced brforc  the  passing  of  the  law.  It  is  necessary  there- 
fore to  examine  the  second  section;  for  it  is  true, that  in  constru- 
ing any /;r/r^  of  a  law,  the  Tt;/j(?/r  must  be  considered;  thcdiflerent 
parts  reflect  light  on  each  other;  and  if  possible,  such  a  con- 


t08  CASES  IN  THE  SUPREME  COURT 

1809.      stiuction  is  to  be  made,  as  will  avoid  any  contradiction  or  in- 

(.^,  consistency.  That  part  of  the  second  section  which  is  material 

Common-  •  ' 

WEALTH    *o  *^^  present  purpose,  dechires,  that  "  if  any  prosecution  by 
i'.         "  indictment  be  infitituted  against  any  person,  contrary  to  tiie 

UuANE.    tt  {p^j^  intent  and  meaning  ol"  this  act,  the  defendant  in  such  in- 
"  dictment  mav  plead  this  act  in  bar,  or  give  the  same  in  evi- 
*■*■  dencc  on  the  plea  of  not  guilty."  It  appears  then,  that  the 
first  section  declares  the  laiv^  and  the  second  section  providet; 
the  mode  by  which  in  certain  cases  the  defendant  shall  avaij 
himself  of  that  law.  The  mode  of  thus  availing  himself,  is  con- 
fined to  indictments  which  have  not  been  tried;  and  I  incline 
to  think,  although  I  give  no  decided  opinion,  that  it  is  confined 
to  prosecutions  commenced  after  the  passing  of  the  law.   For, 
without  entering  into  a  critical  examination  of  the  meaning  of 
the  word  institute^  in  common  parlance,  when  applied  to  legal 
proceedings,  it  signifies  the  cotn7nencement  of  the  proceeding. 
When  we  talk  of  iiistitutiiig  an  action,  we  understand  bring- 
ing an  action.  Supposing  then  that  this  is  the  meaning  of  the 
word,  which  is  giving  the  greatest  possible  weight  to  the  argu- 
ment for  the  commonwealth,  how  will  the  matter  stand?  It 
will   hardly  be  contended  that  the  ajjhmativc  words  in  the  se- 
cond section,  confine  the  defendant  to  the  mode  of  defence 
pointed  out  in  that  section,  if  the  first  section  entitles  him  to 
other  modes  of  defence.  For  instance,  if  a  prosecution  is  com- 
menced after  the  passing  of  the  law,  for  a  matter  which  on  the 
face  of  the  indictment  is  a  libel  against  a  man  in  his  official  ca- 
pacity, the  defendant  may  surely  take  advantage  of  this  act, 
by  motion  in  arrest  of  judgment,  although  he  neither  pleaded 
it  in  bar,  nor  gave  it  in  evidence  on  the  plea  of  not  guilty.    I 
conclude,  therefore,  that  there  is  no  contradiction  or  inconsis- 
tency in  giving  to  the  second  section  the  construction  contend- 
ed for  by  the  commonwealth;  and  at  the  same  time  allowing 
the  first  section  to  operate  in  its  full  extent.  If  the  legislature 
intended  that  the  proceedings  should  be  continued  on  indict- 
ments already  commenced,  they  ought  to  have  said  so  express- 
ly. This  law  is  not  drawn  as  clearly  as  it  might  have  been.    If 
the  same  expressions  had  been  used,  as  applied  to  a  civil  ac- 
tion, I  should  have  thought  myself  warranted  in  giving  it  a 
different  construction,  because  then  it  would  have  operated  in 
a  retrospective  manner,  so  as  to  take  away  from  a  citizen  a 
^^'"ifed  right.  But  there  is  a  wide  diflF"erence  between  a  czt;z/and 


OF  PENNSYLVANIA.  '      609 

a  criminal  action.  In  the  latter,  the  commonwealth  only  relin-      1809. 
quishes  its  own  right  of  inflicting  punishment.   In  nothing  is  ~7,  "^ 

the  common  law,  which  we  have  inherited  from  our  ancestors,    wealth 
more  conspicuous,  than  in  its  mild  and  merciful  intendments         i'- 
towards  those  who  are  the  objects  of  punishment.  We  apply    ^^uane. 
the  principles  of  this  law  to  the  construction  of  statutes.  Sup- 
posing, therefore,  as  is  certainly  the  case,  that  this  act  is  not 
without  obscurity,  I  feel  myself  on  the  safest  and  strongest 
ground,  in  adopting  that  construction  which  takes  away  the 
punishment. 

My  opinion  is  that  the  judgment  be  arrested. 

Yeates  J.  It  appears  to  me  that  the  meaning  of  the  words 
in  the  late  act  concerning  libels,  "  that  from  and  after  the 
"  passing  of  this  act  no  person  .9A«///;<' subject  to  prosecution  by 
'*  indictment,"  &c.  refers  to  indictments  found  after  the  law 
was  enacted.  The  expressions  of  the  legislature  are  in  ihit  fu- 
ture tense,  and  in  my  idea  not  retrospective.  This  construction 
seems  strengthened  by  the  second  section,  "  that  if  any  prose- 
"  cution  by  indictment,  or  any  action  be  instituted  ?\.^^\ust  any 
"  person  or  persons  contrary  to  the  true  intent  and  meaning  of 
"  this  act,  the  defendant  or  defendants  in  such  action  or  indict- 
"  ment  may  plead  this  act  in  bar,  or  give  the  same  in  evidence 
"  on  the  plea  of  not  guilty."  The  provisions  here  relate  to  in- 
dictments thereafter  originated  or  set  on  foot,  and  where  there 
has  been  no  plea  or  trial;  and  cannot  be  extended  to  indictments 
already  found, particularly  where  juries  have  passed  upon  them. 
I  have  thrown  my  sentiments  hastily  together,  within  these 
few  minutes  past;  and  deem  it  my  duty  to  mention  them,  as 
the  result  of  my  judgment  upon  the  argument. 

Brackenridge  J.    I  am  of  opinion  with  the  chief  justice, 
hat  the  act  of  assembly  has  put  an  end  to  tlie  prosecution. 

Judgment  arrested. 


610  CASES  IN  THE  SUPREME  COURT 

1809. 


lb  61U 

(Sst4'26 

10s  1 34 '2 

2w4()7 

April  4th.  In  Error. 


Wallace  against  James  and  John  Baker. 


74    314 
85    375 


The  defend-  -|-^  RRQR  to   the   common  pleas   of    Philadelphia    countv. 

ant  .igTeeani    ti  . 

writing- th.'.t  ^—^   The  record  was  of  an  action  of  assumpsit  by  the  Bakers 

a  honse  upon  jj     -j^gj.    ff^^//^c^.    l\^^.    clcclaration   in    which    contained    four 

which  he  o 

had  a  claim  of  counts: 

should  b^  ^^^  "^^^  ^"'^"^  ^'^'"^  '^  colloquium  on  the  23d  June  1804,  be- 

sold  and  tween  the  plaintiffs  and  defendant,  concerning  the  sale  of  goods 
and  that  the  ^^  ^^^  plaintiffs  to  a  certain  Robert  Berrett  and  Ajidrew  C.  Smithy 
dittlrencc  and  concerning  the  sale  of  a  house  occupied  by  Berrett  on 
chVm^ind^'^  which  the  defendant  had  a  claim  of  6000  dolls,  and  an  agree- 
that  sum  ment  by  the  defendant  that  the  house  should  be  sold  and  bring 
^aidtothe  ^^^^  dolls.j  and  that  the  difference  between  that  sum  and 
plaintiffs;  6000  dolls.  should  be  paid  to  the  plaintiffs  in  part  payment  of 
petenrto"""^^*^  goods.  It  then  stated  that  upon  that  discourse  the  plaintiffs 
him  to  give  agreed  to  sell  and  deliver  the  goods  to  Berrett  and  Smith,  in 
jpj^'^g  ^l'j^^jj_ consideration  whereof  the  defendant  agreed  to  guarantee  to 
was  not  them  that  the  house  should  be  sold  and  should  bring  8000 
hTm'to pay  dolls.  and  that  the  difference  between  that  sum  and  his  claim 
any  money,  of  6000  dolls.  should  be  paid  to  the  plaintiffs;  and  that  after- 
surplus,  wards,  to  wit,  the  day  and  year  aforesaid,  the  defendant,  in 
whatever  it  consideration  of  the  agreement  aforesaid,  and  also  in  conside- 
that  the  '      ration  that  the  plaintiffs  had  promised  to  perform  all  things  in 

house  should  til e  agreement  on  their  part  to  be  performed,  promised  to  per- 

brinc  above    .  n    i  •  o  i  •  r      i  i  r 

6000.  form  all  things,  &c.  on  his  part.  It  then  averred  a  performance 

Declarations  by  the  plaintiffs,  and  that,  although  the  defendant  in  pursuance 
made  by  the      -   .  .  i      r    i  i    n        i 

party  at  the   of  the  agreement  paid  1000  dolls,  parcel  of  the  2000  dolls,  the 

time  of  exe- difference,  &c.  he  had  not  sold  or  caused  to  be  sold  the  said 

cutmg-  a  •  1     1  •  1 

written         house,  nor  paid  or  caused  to  be  paid  the  said  1000  dolls,  re- 

agreemcnt,  gidue,  &c.  (althowrh  to  do  this,  the  defendant  afterwards,  to 
notevidence,      .  ,  ,  ^  .  ,  ,>  •  ,  , 

if  not  com-    wtt^  the  day  and  year  aforesaid^  at  the  county  aforesaid,  and 

mumcated     often  afterwards  was  requested  by  the  plaintiffs.) 

to  the  other  ,        '  .        ^  ^  .  .   .     .^ 

party.  The  2d  count  laid  the  colloquium  between  the  plamtiffs, 

The'declara-^^^^^^^  and  Smith,  and  the  defendant,  and  that  B,  and  S.  had 

tion  laid  a  ' 

request  to 

sell  the  house  and  to  pay  the  money,  "on  the  day  and  year  aforesaid,"  which  was  the  day 

of  the  contract.  Held,  tliat  the  request  is  well  laid,  though  the  defendant  has  a  reasonable 

time  to  sell  the  house  and  pay,  after  the  contract. 


OF  PENNSYLVANIA.  611 

proposed  to  the  plaintiffs  to  sell  the  goods,  and  had  offered  to      1809. 
pav  for  them  partly  bv  the  sale  of  the  house,  the  proceeds  of  777~~~~~ 
which  above  6000  dolls,  the  plaintiffs  were  to  receive,  and         x>. 
partly  out  of  their  proper  funds,  to  which  the  plaintiffs  assent-    Baker 
ed.  And  that  the  defendant  in  consideration  that  the  plaintiffs 
would  sell,  &c.   assumed  that  the  house  should  be  sold  and 
bring  8000  dolls,  and  so  on,  as  in  the  first  count,  omitting  the 
partial  payment. 

The  3d  count  laid  that  in  consideration  the  plaintiffs  at  the 
request  of  the  defendant,  would  sell  and  deliver  to  Berrett  and 
Smithy  divers  goods  to  the  value  of  10000  dollars,  the  defend- 
ant undertook  and  promised  in  writing  that  he  would  thereb^^ 
guarantee  to  them  that  the  house  then  occupied  by  Berrett 
should  be  sold  and  bring  8000  dolls,  and  that  the  difference 
between  his  claim  of  6000  dolls,  and  that  sum  should  be  paid 
to  them.  That  the  plaintiffs  confiding  therein,  did  at  the  defend- 
ant's request,  sell  and  deliver,  &c.  of  which  the  defendant  had 
notice;  by  reason  whereof,  and  according  to  the  tenor  and  effect 
of  the  said  promise,  the  defendant  became  liable  to  pay  the 
difference  between  8000  dolls,  and  6000  dolls,  to  wit,  2000 
dolls,  and  being  so  liable  he  promised  to  pay,  when  he  should 
be  thereto  afterwards  required. 

The  4th  was  a  count  for  goods  sold  to  Berrett  and  Smithy 
at  the  special  instance  and  request  of  the  defendant. 

Upon  the  trial  of  the  cause  it  appeared  that  Berrett  and 
Smith  were  in  treaty  for  the  stock  in  trade  of  the  plaintiffs,  and 
that  Smith  had  negotiated  with  the  defendant  to  give  the  en- 
gagement which  was  the  ground  of  action.  This  engagement 
and  two  notes  which  preceded  it,  were  as  follows: 

"  Messrs.  Berrett  and  Smith  will  have  the  goodness  to  say 
"  whether  they  have  determined  with  respect  to  the  stock;  as 
*'  wc  have  been  and  are  hourly  deprived  of  making  sales,  which 
*'  is  a  serious  disappointmrni  and  loss.  If  Mr.  Wallace  is  de- 
"  termined  on  selling  the  house,  we  j)resumc  he  can  have  no 
"  objections  to  saying  he  7i'ill/)ni/  k.v  the  difference  between  his 
'*  claitn  and  the  amount.   W\:  are  &c." 

"  James  and  John  Bairr."" 

"  22d  yune  1 804-" 

"To  Berrett  iind  Smifhr 


<)12  CASES  IN  THE  SUPREME  COURT 

1809.  '''' ('cntlemen^ 

^7r~~7~     "  Ml'  Wallace  assents  to  your  proposals  in  your  note  of 

^,  "  being  answerable  tor  rvhatcvcr  .sum  the  house  mat)  bring  over 

Baker.    "  h\s  claim  of  6000  dolls,  which  shall  be  accomplished  as  soon 

"  as  possible,  and  you  receive  the  cash  from  him." 

'■'■  Berrett  and  Smith,^^ 
''To  y.andj.  Baker  r 

"  I  agree  to  the  above. 

"  Burton  Wallace:' 

"  I  do  hereby  guarantee  to  Messrs.  James  and  Jolm  Bakei 
"  that  the  house  now  occupied  by  Mr.  Robert  Berrett  shall  be 
"  sold,  and  bring  eight  thousand  dollars,  and  the  difference  be- 
*'  tween  my  claim  of  six  thousand  dollars  and  that  sum,  shall 
''  be  paid  them." 

"  Burton  Wallace:' 

"  Philadelphia,  gillie  23,  1804." 

The  defendant  offered  a  witness  to  prove  that  it  was  never 
intended  by  him  that  he  should  pay  or  deliver  to  the  plaintifft. 
any  money  whatever,  but  the  surplus,  if  any  there  should  he, 
beyond  the  sum  of  6000  dolls,  expected  to  arise  from  the  sale  of 
the  house.  He  also  offered  to  prove  the  declarations  of  Andrew 
Smith  on  whose  instance  and  behalf  he  entered  into  the  en- 
gagement, and  the  declarations  and  understandings  of  Smith 
and  himself,  before  he  signed  the  engagement  of  23d  oijuney 
although  the  plaintiffs  were  not  present  when  they  were  made. 
But  the  evidence  was  overruled  by  the  court.  The  court  then 
charged  the  jury  that  the  defendant  was  bound  to  sell  the  house 
in  a  reasonable  time,  and   that  the  contract  being  made  the 
23d  of  June  1804,  and  the  action  brought  in  May  1805,  they 
were  competent  to  say  whether  reasonable  time  had  been  al- 
lowed; that  the  note  was  not  void  under  the  act  of  frauds  and 
perjuries;  that  the  demand,  not  being  for  a  precedent  debt  or 
duty,  the  declaration  had  duly   stated  a  special  request,  of 
which  evidence  had  been  given  that  they  were  to  decide  upon; 
and  finally  that  the  consideration  of  the  agreement  was  valid, 
the  plaintiffs  having  in  consequence  of  it  parted  with  their  pro- 
perty. To  this  opinion  and  charge  the  defendant  tendered  a  bill 
of  exceptions,  which  the  court  allowed,  and  the  jury  found  foi 
the  plaintiffs. 


OF  PENNSYLVANIA.  613 

C.  y.  IiigersoU^  for  the  plaintiff  in  error,  made  three  points.      1809. 
1.  That  the  parol  evidence  was  improperly  rejected.  2.  That  ^^Y~^^^^^^ 
no  request  was  sufficiently  laid  in  the  declaration.  3.  That  the         v. 
contract  was  without  consideration,  and  void.  Baker, 

1.  The  instrument  of  ^odjune  was  merely  a  parol  agree- 
ment: it  is  so  declared  upon;  and  therefore  was  liable  to  be  af- 
fected in  every  way  by  parol  evidence.  But  giving  it  even  the 
sanctity  of  a  deed,  the  evidence  was  proper  under  the  English 
cases,  and  most  clearly  under  our  own.  The  object  was  to  add 
a  condition  to  the  agreement;  that  is,  to  pay  2000  dollars, /jro- 
-j'ldfd  the  house  was  sold  and  brought  8000  dolls,  which  was 
clearly  the  intention  of  the  plaintiff's  note  of  22d  June;  this 
was  allowed  in  Snowball  v.  Vicaris.  («)  It  is  not  necessary  that 
the  parol  evidence  should  go  to  establish  a  trust  or  fraud;  it  is 
allowed  to  take  away  a  legacy,  Bigelston  v.  Grubby  (b)  to  shew 
a  mistake,  yoynes  v.  Statham^  {c)  and  to  shew  that  a  written 
agreement  has  been  discharged.  Pitcairn\.Ogbourne.{d^  In  all 
these  cases  it  was  allowed  to  vary  and  contradict  the  writing. 
The  case  of  Meem  v.  Ansell^  (e)  upon  the  authority  of  which  it 
was  ruled  against  us  below,  is  too  strict,  and  has  been  shaken  by 
subsequent  decisions.  Doe  v.  Burt  {/)-,  The  King  v.  Scammoyi- 
den  (g)y  Small  V.  Allen  (h).  But  in  Pennsylvania^  we  have  car- 
ried the  rule  further  than  in  England.  In  Thompsori's  Lessee  v. 
IVhite^  (i)  the  rule  in  Harvey  v,  Harvey  (i)  that  parol  evidence 
may  be  given  of  declarations  made  before  the  execution  of  a 
deed,  to  shew  the  design  with  which  it  was  executed,  was 
adopted  by  the  whole  court;  and  in  Field  v.  Biddle  (/)  parol 
evidence  was  admitted  to  prove  an  agreement  that  an  absolute 
bond  should  be  void,  unless  a  ratification  of  certain  articles  of 
composition  should  be  sent  from  England  in  six  months.  Mr. 
Justice  /^rarZ/brr/ appeared  to  think  it  was  going  much  further 
than  the  English  books,  but  he  said  he  was  bound  by  Eliirst  v. 
Kirkbride^  the   particulars  of  which  are  not  reported. 

2.  The  special  counts  in  the  declaration  conclude  with  a  lict-l 
sKpe  reqnisitits;  and  although  the  two  first,  in  addition  Xo  this, 
lay  a  time,  it  is  the  same  time  with  the  contract,  which  was  be- 
fore the  lapse  of  a  reasonable  time,  when  the  duty  arose.  Th«- 

(a)  Bunb.  \7S.  (r  )  .3  mU.  273.  (/)  2  Dall.  425. 

(/>)  2  Atk.  47.  (/)  1  1).  C-  K.  701.  (/•)  2  Cha.  C,i.  im 

(c  )  3  Aft.  3H7.  is)  ^  J^  (^^  1"'  471.  (/)  2  Dnll  in 

{d)2  Vet.  378.  /",',)«  /).  C-.  £.  117 

VoT.  T.  I  f 


614  CASKS  IN  THE  SUPREME  COURT 

1809.      sale  of  the  house  was  a  collateral  duty  arising  upon  demand 

w .  T  T  .TTT  J^ftcr  reasonable  time,  and  therefore  a  special  demand  was  ne- 

i<_         cessarv.  B/ris  v.    Trippett  (a),  Selman  v.  Kin!^  (b).  And  the 

Bakur.    icquest  before  reasonal")le  time  will  not  answer,  for  it  should 

be  made,  when  the  duty  ought  to  be  performed.  Fitzhugh  v. 

Dennvigton.  (c) 

3.  There  was  no  consideration  moving  to  or  from  the  de- 
fendant; he  was  a  stranger,  and  the  agreement  a  mere  curtesy. 
Crow  V.  Rogers,  {d^ 

Nervcomb  and  .9.  Levy  for  defendants  in  error.  The  case  is 
entirely  clear  of  the  decisions  upon  parol  evidence.  The  evi- 
dence offered,  was  of  the  defendant's  intentions^  never  commu- 
nicated to  the  plaintiffs,  and  of  declarations  made  in  their  ab- 
sence, but  without  stating  of  what  nature,  or  at  what  time.  The 
agreement  being  in  writing  and  very  explicit,  no  intentions  or 
declarations  not  communicated  to  the  plaintiffs  could  form  a 
part  of  it.  Smithy  to  whom  they  were  made  known  was  not 
their  agent,  but  the  object  of  the  contract;  and  it  would  be 
opening  a  door  to  the  most  terrible  frauds,  to  trip  up  the  hold- 
er of  a  positive  agreement  by  secret  declarations  to  a  third  per- 
son. But  it  was  properly  rejected,  relation  being  had  to  the 
agreement's  being  in  writing.  iMeers  v.  Ansell  has  never  been 
overruled.  Doe  v.  Burt  turned  upon  the  construction  of  the 
writing  on  its  lace.  In  The  King  v.  Scammonden  the  evidence 
was  allowed  merely  to  shew  a  different  consideration  from  that 
expressed  in  the  deed;  and  in  Small  v.  Allen  it  was  admitted  to 
defeat  a  fraud.  The  case  was  affirmed  in  Preston  v.  Mer- 
ceau.  (f)  The  ruk  in  Penrisylvania^  is  the  same  as  in  England; 
for  by  a  note  of  C.  J.  Shippen^  Hurst  v.  Kirkbride^  which  hus 
been  thought  to  varv  the  rule,  turns  out  to  have  been  a  case  of 
gross  fraud.  Parol  evidence  is  allowed  in  the  cases  of  trust  and 
fraud;  it  is  also  allowed  to  explain  ambiguities,  but  never  to 
varv  or  contradict  the  written  instrument.  And  so  are  the 
cases  from  Dallas.  Peakc's  Ev.  1 12.  1 14.  Finney  v.  Finney,  (f) 
Here  there  is  not  a  suggestion  of  fraud.  The  agreement  of  22d 
yune  was  altered  on  the  23d,  and  the  object  of  the  evidence 
was  to  set  up  the  first  agreement. 

(fl)  1  SaunJ  53.  (c)  6  Mod.  227.  2C0  (e)  2  JV.  Black.  1249. 

(/;)  Cra.  Jac.  183.  {,d  )  1  Ulra.  592.  (/)  1  WiU.  34. 


OF  PENNSYLVANIA.  615 

There  is  a  request  laid  both  in  time  and  place,  and  the  only      1809. 
question  is  whether  the  time  was  proper,  being  laid  on  the77^~ 
same  day  with  the  contract.  In  the  first  place,  this  was   not  a         ^,. 
duty  arising-  upon  demand,  but  merely  payable  on  demand;  it    Bakf.u. 
was  not  a  collateral,  but  an  original  undertaking;  Bull.  N.  P.  2 80. 
Capp  V.  Lancaster  (a),  and  Harxvood  v.  Turberville.  (b)  Then 
even  if  it  arose  upon  demand,  it  did  not  arise  after  a  particular 
time  had  elapsed,  so  as  to  require  a  demand  after  that  time, 
which  was  the  case  of  Fitzhiigk  v.  Dennington;  but  no  time 
was  appointed,  and  then  the  request  might  be  made  immedi- 
ately, and  the  party  left  a  reasonable  time  afterwards,  which  is 
the  distinction  of  Holt  in  6  3Iod.  260.  Wallace  however  paid 
1000   dollars,   which   acknowledged   a   demand,    as   well   as 
reasonable  time. 

The  consideration  is  too  plain  for  argument.  The  agreement 
was  in  consideration  that  the  plaintiffs  would  sell  goods  to  a 
third  person,  which  they  accordingly  sold.  Loss  to  the  plain- 
tiff is  as  good  a  ground  of  contract  as  benefit  to  the  defend- 
ant. 1  Pow,  Con.  344.  1  Fonbl.  536. 

Ingersoll  in  reply.  The  effect  of  the  evidence  is  one  thing; 
whether  it  should  have  been  heard  is  another.  As  a  general 
principle,  independent  of  statutes,  there  is  no  difference  be- 
tween contracts  by  word  of  mouth,  and  contracts  in  writing 
not  under  seal.  Rann  v.  Hughes,  (c)  They  are  all  parol.  The 
agreement  here  is  declared  upon  as  parol.  If  it  is  not,  how  do 
they  find  out  the  consideration?  The  instrument  expresses 
none;  and  the  plaintiffs  are  therefore  in  the  dilemma  of  allow- 
ing it  to  be  parol,  and  then  it  is  open  to  every  proof,  or  all 
written,  and  then  it  is  bad  for  want  of  consideration.  The  de- 
clarations it  is  true  varied  the  writing;  but  they  must  have  been 
made  at  the  time  of  signing  it,  tor  on  the  day  before,  the  con- 
tract was  clearly  against  the  plaintiffs;  they  therefore  come 
within  Hurst  v.  Kirkbride,  where  declarations  at  the  time  were 
allowed  to  contradict  the  deed.  Both  declarations  and  inten- 
tions must  have  been  offered  to  shew  that  the  defendant  was 
cheated,  which  makes  it  a  case  of  fraud;  whether  the  plainiifl's 
knew  it,  should  have  gone  to  the  jury.  The  request  to  sell  the 

{a)  Cm.  Eliz.  518.  (A)  6  Mod.  200.  (  c)  7  Z>.  O  E.  351.  note. 


t)iO  CASES  IN  THE  SUPHKML  COUR'l 

1809.      housf  and  to  pay  the  money   is  laid  as  all  one  act;  'vvhereas 
Wallace  ^''*^  defendant  unless  hastened  to  do  both,  had  his  life  to  do 
V.         them  in. 
Bakeu.  ji 

TiLGHMAN  C.  J.  This  case  arises  on  a  writ  of  error  to  the     'j 
court  of  common  pleas  of  the  county  of  Philadelfjhia.  Annexed    •' 
to  the  record  is  a  bill  of  exceptions,  stating  several  exceptions  'i 
to  the  opinion  of  the  court.  The  principal  and  indeed  the  only  _ 
one  of  any  weight,  is  that  to  the  rejection  of  the  parol  testimo- 
ny offered  by  the  defendant,  in  contradiction  to  the  writing  on 
which  the  plaintiff  founded  his  action.   There  have  been  many 
decisions  in  this  court  in  favour  of  the  admission  of  parol  evi- 
dence, even  in  contradiction  to  written  instruments.  These  de- 
cisions have  been  chiefly  in  cases  ofyrfl?^^  and  oi  trust.  I  think 
the  law  will  be  found  accurately  stated  in  the  Lessee  of  Thomp- 
son and  wife  v.  White^  1  Dall.  424.  where  C.  J.  M'-Kean  deli- 
vered the  opinion  of  the  court  after  full  consideration.  The 
leading  case  on  this  subject  is  that  of  Hursfs  Lessee  v.  Kirk- 
hride^  tried  at  nisi  prius  in  Bucks  county  24th  of  March  1773. 
As  that  case  has  been  often  cited  and  relied  on  by  counsel  and 
recognised  by  the  court,  and  is  not  in  print,  I  have  procured  a 
state  of  it  from  the  notes  of  C.  J.  Cheiv^  who  was  counsel  for 
Kirkbride.  The  plaintiff  Timothy  Hurst  claimed  the  manor  of 
Pennshurij  under  a  deed  from  Robert  Edward  Fell.  This  deed 
(dated  10th  of  May  1770,  and  made  in  pursuance  of  and  inex- 
act conformity  to  articles  of  agreement  dated  10th  oi  April 
1770)  after  describing  a  large  lot  of  ground  on  South  street  in 
the  city  of  Philadelphia^  contained  general  expressions,  compre- 
hending all  the  grantor's  lands  in  Pennsylvania^  and  elsewhere 
in  America.  The  counsel  for  the  defendant  offered  to  prove  by 
parol  testimony,  that  it  was  not  the  intent  of  the  parties  to  con- 
vey the  manor  of  Pennsbury^  and  that  the  sale  of  the  manor 
was  excepted  at  the  time  of  executing  the  articles  and  deed. 
The  court,  after  argument,  permitted  evidence  to  be  given  by 
William  Parr  the  conveyancer  who  drew  the  writings,  of  con- 
versations which  he  had  with  the  parties  when  he  received  his 
instructions  for  drawing  the  writings,  and  while  he  was  draw- 
ing them;  and  also  that  immediately  after  Fell  had  signed  and 
sealed  the  writings,  before  he  rose  from  his  chair,  and  before 
the  witnesses  had  signed  their  names,  he  mentioned  the  manor 
of  Pennsbury  to  Hurst^  who  answered,  "  As  to  the  manor,  sir,  I 


OF  PENNS VLVAXI A .  617 

'*  will  treat  with  you  about  it  another  time."  The  truth  was,  that      1809. 
Fell  had  not  a  good  title  to  the  manor,  and  had  afterwards  sold  ^v^llace 
it  to  Kirkbride^  not  in  his  own  right,  but  as  attorney  for  the         -j,. 
real  owners  in  England.    Now  it  was  a  gross  fraud  in  Hurst,    Baker. 
after  all  that  had  passed,  to  set  up  a  claim  to  the  manor,  under 
the  deed  from  Fell.  But  neither  that  case,  nor  any  other  which 
has  been  cited  for  the  plaintiff  in  error  will  support  the  excep- 
tion to  the  opinion  of  the  court  of  common  pleas.  Let  us  eX' 
amine  the  evidence  which  was  rejected.  The  defendant  below 
offered  to  prove  "  that  it  was  never  intended  by  him,  that  he 
"  should  pav  or  deliver  to  the  plaintiifs  any  money  whatever, 
''  but  the  surplus,  if  any  there  should  be,  bejond  the  sum  of 
*■'  6000  dolls.,  expected  to  arise  from  the  sale  of  the  house." 
But  it  does  not  appear  that  such  intention  was  ever  made 
known  to  the  plaintiffs,  and  therefore  it  ought  not  to  affect 
them.  The  defendant  offered  to  prove  further  "  the  declara- 
"  tions  of  Andrew  Smith,  at  whose  instance  and  request,  and 
"  in  whose  behalf  the  defendant  entered  into  the  said  writing, 
"  and  the  declarations  and  understandings  of  the  said  Andrew 
"  Smith  and  of  the  defendant,  before  he  signed  the  said  writing, 
"  although  the  plaintiffs  were  not  present  at  the  time  of  making 
"  the  said  declarations."  The  bill  of  exceptions  is  defective  in 
not  stating  what  these  declarations  and  understandings  were. 
The  court  should  be  informed  of  their  nature.   But  whatever 
they  might  have  been,  they  were  improper  evidence,  because 
the  party  to  be  affected  by  them  was  absent,  nor  can  we  pre- 
sume that  he  ever  heard  of  them.   It  is  not  stated  that  Andreio 
Smith  was  in  any  manner  the  agent  of  the  plaintiffs;  if  he  had 
been,  the  case  would  have  been  very  different.  The  matter  then 
is  simply  this.    The  defendant  executes  a  writing,  on  the  faith 
of  which  the  plaintiffs  part  with  valual)lc  property,  and  after- 
wards wants  U)  prove  that  before  he  signed  it,  he  had  inten- 
tions and  made  declarations  tending  to  render  it  of  no  value, 
which  were  never  communicated  to  the  plaintiffs.  Under  these 
circumstances  is  there  auyj'raud  in  insisting  on  an  exact  fulfil- 
ment of  the  written  engagement?  Or  is  there  any  justice  in 
permitting  the  plaintiffs  to  be  effected  by  the  evidence  of  mat- 
ters, unknown  to  them  when  they  made  their  contract?   It  is 
vcT}'  clear  that  this  testimony  was  properly  rejected. 

The  second  exception   is,  that  the  plaintiffs  did  not  lay  in 
their  declaration,  a  special  request  to  perform  the  guarantee, 


Baker. 


618  CASES  IN  THE  SUPREME  COURT,  &c. 

1809.      "01"  fJiJ  they  prove  such  request.   I  think  the  request  is  suffi- 
Wallace  ciently  set  forth  in  the  declaration;  and  as  to  the  proof,  the 
V.        judge  submitted  the  case  to  the  jury  on  the  evidence,  so  that 
there  could  be  no  error  in  law,  in  that. 

The  /rt.v?  exception  is,  that  there  was  no  consideration  for  the 
defendant's  assumption.  This  exception  must  have  been  taken 
in  a  hurry;  it  is  expressly  laid  in  the  declaration,  that  in  consi- 
deration of  the  defendant's  guarantee,  the  plaintiffs  sold  and  de- 
livered to  Berrett  and  Smithy  goods  to  a  large  amount. 

My  opinion  upon  the  whole  is,  that  the  judgment  of  the  court 
of  common  pleas  be  affirmed. 

Yeates  J.  concurred. 

Brackenridge  J.  was  holding  a  court  of  nisi  prius,  during 
the  argument  of  this  cause,  and  gave  no  opinion. 

Judgment  affirmed. 


END  OF  MARCH  TERM,  1809. 


AN 

INDEX 


TO    THE 


PRINCIPAL  MATTERS. 


ACKNOWLEDGMENT. 
See  Bakon  and  Feme,  2. 


ACTION. 
See  Bond. 

1.  Letters  of  adininistralion  granted  un- 
der seal  in  a  sister  state,  are  a  suffi- 
cient autliority  to  maintain  an  action 
in  this  state.  M<'uUou^'/i  v.    Y'ou7ig. 

Paj,-e     63 

2.  In  order  to  reach  the  estate  of  a  de- 
ceased partner,  an  action  for  a  part- 
nersliip  debt  lies  against  his  executor, 
jftiie  Murvivin^;  paitncrbea  cerlifirated 
bankrupt  before  action  brought.  Im>ii^ 
V.  KepfieU.  123 

3.  (me  partner  cannot  maintain  assump- 
sit ajjainst  the  other  for  the  pioceeds 
of  a  partnership  adventure,  unless 
they  have  settled  their  accounts  and 
struck  a  balance.    Ozian  v.  Johnson. 

191 

4.  To  stipport  an  action  on  tlie  case  for 
damage  occasioned  by  a  conin)on  nui- 
sance, it  is  not  necessary  iliat  the  da- 
mage sustained  was  iiiiiu'.diate;  it 
is  sufficient  if  it  was  consequential. 
Nng/te.i  V.  Hrifter.  463 


ACTUAL  SETTLEMENT. 

1.  Two  years  after  the  pacification  by 
General  IVayne's  treaty  with  tiie  In- 
dia?is,  13  a  reasonable  time  for  making 
a  settlement  which  has  been  prevent- 
ed by  the  enemy.  Lessee  of  Hazard  v. 
Lowrij.  166 

^  The  proviso  in  the  9th  section  of  the 
act  of  3d  J/iril  1792,  which  excuses  a 
settlement  in  case  of  prevention  by  the 
enemy,  also  excuses  a  survey.        166 

The  want  of  an  actual  settlement 
within  two  years  from  the  pacification 
with  the  Indians,  cannot  be  set  up 
a,c;aiiist  the  title  of  a  warrantee  under 
the  act  of  3d  .l/iril  1792,  by  a  person 
who  has  taken  wrongful  possession  of 
the  land,  and  before  tlie  expiration  of 
the  two  years  has  refused  to  deliver  it 
up  to  tlie  warrantee.  A  bare  refusal  is 
enough  to  estop  the  possessor,  with- 
out tlie  tiireat  or  use  of  actual  force. 
Leasee  of  Palter  son  v.  Cochran.      231 


ADMINISTHATOR. 

Sec  Dehis.  Judgment,  3. 

I.  Letters  of  administration  granted  un- 
der seal  in  a  sister  state,  arc  a  suffi- 
cient aulliorily  to  niainlain  an  action 
in  this  state.  l^hCuHoin^h  v.  Younrr.  f>'\ 


6:^0 


INDEX. 


-.  An  administrator  is  cliarpjcublc  witli 
interest,  wlicrc  he  lias  been  j^uilty  of 
nes^lect  in  not  pottiny;  out  tlie  money 
oltlie  intestate,  or  has  used  it  himself; 
and  it  hes  upon  liim  to  shew  what  has 
been  done  witli  it.  But  lie  is  not  liable 
for  interest  until  after  twelve  months 
from  the  intestate's  death.  Fojc  v.  Mll- 
ccck.^.  I  y.i. 

3.  Judgments  obtained  before  a  justice 
of  the  peace  when  filed  in  the  common 
pleas  or  made  known  to  the  adminis- 
trators must  be  paid  by  them  /iro  rata 
with  judi^ments  in  courts  of  record. 
^cott  V.  Ram&aii.  221 


AGENT. 

•SVe  Frauds  and  Peiuuuies,  J. 

If  an  agent  indebted  to  his  principal, 
ships  property  to  him  on  board  a  ves- 
sel belonging  to  a  third  person,  (al- 
though bound  to  conform  lo  the 
agent's  orders)  and  the  captain  signs 
a  bill  of  lading  deliverable  to  the  prin- 
cipal, the  property  thereupon  vests  in 
the  principal,  and  the  agent  cannot 
countermand  or  disturb  the  shipment. 
'Siunmcril  v.  Elder.  106 


AGREEMENT. 

^ee  Amendment,  1.  Fkauds  and 
Peujuries,  3. 

1.  If  a  forged  check  is  credited  as  cash 
in  the  holder's  bank  book,  and  after- 
wards under  a  mistake  of  his  rights, 
he  agrees  that  if  the  check  is  really  a 
forgery,  it  is  no  deposit,  he  is  not 
bound  by  the  agreement.  Ltvy  v. 
Bank  of  the  United  Htalcn.  27 

2.  A  contract  for  the  purchase  and  .sale 
of  lands  in  Pennnxjlvania  under  the 
Connecticut  title,  is  unlawful  and  void, 
although  the  act  of  J/iril  1  1th  1795, 
neither  expressly  says  so,  nor  contains 
any  clause  prohibitory  of  the  contract, 


but  merely  inilicts  a  penalty  on  the  of- 
fender. Mitc/irll  w  Sniil/i.  11  o 


AMENDIVIENT. 

1.  If  there  is  an  agreement  by  attorneys 
below  to  amend,  amendment  may  be 
made  after  error  Ijrought,  and  without 
costs.  Jo/mnon  v.  ChaJJ'ant.  75 

2.  A  hahcan  cor/iiia  to  remove  a  cause 
from  the  common  pleas  to  the  su- 
preme court  may  be  amended  by  the 
/u-icci/ic;  and  may  after  verdict  be  sent 
back  to  the  common  pleas  for  the  pur- 
pose of  having  the  return  amended  by 
that  court.  Bcnncr  v.  Freij.  366 

3.  Amendments  are  reducible  to  no  cer- 
tain rule.  Each  particular  case  must 
be  left  to  the  sound  discretion  of  the 
court.  Ikit  the  best  principle  seems  to 
be,  that  an  amendment  shall  or  shall 
not  be  permitted,  as  it  will  best  tend  to 
the  furtherance  of  justice.  36y 

4.  After  suit  brought  one  of  the  defend- 
ants dies,  and  judgment  is  entered 
against  both.  Error  is  brought  to  a  su- 
perior court,  where  the  writ  is  non- 
prossed; and  then  upon  error  coram 
vobifiy  the  death  of  one  of  the  defend- 
ants before  judgment,  assigned.  A- 
mendment  permitted  by  entering  a 
suggestion  of  the  death,  with  the  same 
effect  as  if  it  had  been  done  before 
judgment.  Lenficc  of  IIUL  v.  Went. 

486 

5.  A  count  charging  man  and  wife  upon 
a  joint  assumption  in  consideration  of 
money  iiad  and  received  by  them  for 
the  plaintiff's  use,  cannot  be  amended 
under  the  arbitration  law  of  21st 
March  1806.   (iranser  v.  Kckart.   575 

3.  Amendment  of  a  declaration  in  ac- 
count render  permitted,  by  adding  to 
a  count  which  charged  the  defendant's 
testator  as  bailiff  and  receiver  of  the 
plaintiff,  a  count  charging  him  as  bai- 
liff Sec.  of  the  plaintiff  as  surviving 
Jiartner  of  y/.,  although  the  writ  cor- 
responded with  the  first  count.  Gratz 
V.  Fhillifis.  58S. 


INDEX. 


621 


APPEAL. 

1.  The  record  of  the  procec'din£^s  upon 
an  appeal  from  the  circuit  court,  which 
bv  hiw  is  directed  to  be  filed  before  the 
next  term,  is  in  time,  if  fiied  before 
the  court  meets  on  the  first  day  of  the 
next  term.    Vanlcar  x.Vcirilcar.  76 

2.  The  proceedings  upon  an  appeal  from 
a  justice  of  the  peace,  are  not  dc  novo 
in  the  common  pleas;  and  therefore  if 
the  justice  exceeds  his  jurisdiction, 
judti^ment  in  the  common  pleas  may 
be  arrested.   Aloorev.  IVait.  219 

3.  An  appeal  does  not  lie  from  the  board 
of  property  to  the  common  pleas,  al- 
though an  act  of  assembly  directs  the 
ofBcers  of  that  board  to  do  certain 
things  in  case  of  an  appeal.  Comtno?!- 
ivcalth  V.  Cochran.  324 

4.  On  an  appeal  from  a  decision  of  the 
circuit  court,  the  supreme  court  is  in 
the  same  situation  with  the  judge  of 
the  circuit  court,  and  may  make  the 
same  orders  that  he  could.  Kennedy  v. 
I.oturu.  393 


APPEARANCE. 

1  f  an  attorney  enters  his  appearance  ge- 
nerally to  a  suit  against  two  defcnd- 
danls,  one  of  whom  only  is  summon- 
ed, it  is  a  good  appearance  for  both. 
M'CuUoiitfhv.  (Jufliirr.  211 


ASSIGNMENT. 

See  Set-off,  2. 

1.  On  the  same  evening  after  a  consi- 
derable verdict  is  oblaincd  agaiiiSt  A, 
he  conveys  all  his  properly  to  a  trus- 
tee of  his  own  rlioice,  lor  the  benefit 
of  all  his  creditors  in  equal  propor- 
tions. The  trustee  live*  at  a  distance, 
and  does  not  hear  of  the  deed  initil 
four  days  afterwards,  when  he  assents. 
No   possession   of  the  title   deeds  is 

Vol.  r.  4  K 


given  until  nearly  two  months  after, 
and  the  debtor  continues  in  possession 
of  the  furniture  and  goods  the  next 
day  after  tlie  execution  of  the  deed, 
which  was  Sunday ■,  and  part  of  Mon- 
day, when  they  were  taken  in  execu- 
tion. The  deed  contains  no  schedule 
of  property,  and  no  limitation  of  time 
for  distributing  the  estate.  JMd  that  it 
is  a  valid  assignment,  and  takes  effect 
from  its  execution,  as  the  assent  of 
the  trustee  is  presumed;  delivery  of 
the  title  deeds  is  unnecessary,  and 
nondelivery  of  the  goods  is  explained. 
jrUt  V.  Franklin.     '  502 

Although  it  is  most  prudent  and  pro- 
per for  tlie  debtor  to  consult  his  credi- 
tors as  to  the  choice  of  a  trustee,  when 
it  can  be  done  without  great  inconve- 
nience, yet  where  there  is  no  bankrupt 
law  existing,  there  is  no  law  which 
forl)ids  tlie  debtor  to  make  the  choice 
himself.  502 

A  schedule  is  more  necessary  where 
part  of  a  debtor's  property  is  conveyed 
to  particular  creditors,  than  where  the 
whole  is  conveyed  for  the  benefit  of 
all.  The  want  of  it  is  a  circumstance 
to  be  taken  into  consideration,  but  it 
is  not  conclusive  evidence  of  fraud. 

.')02 


ASSIZE  OF  NUISANCE. 

An  assize  of  nuisance  cannot  be  remo- 
ved from  the  common  pleas  to  the  su- 
preme couit,  by  halwas  corprm.  Livc- 
zey  V.  (jorgaa.  '^'i  1 


ASSUMPSIT. 
See  PaRTNKUs,  1 

ATTAINDER. 

See   CrUTFSY. 


/ 


622 


INDEX. 


ATTACiniKiNl',  FOREIGN 
Sec  Set-oi"k,  1. 

1.  If  the  pjarnislit'c  in  a  forcip;n  attach- 
nit.nt  pay  over  to  llie  plainlilT  the  ckl)t 
attached,  without  being;  compelled  by 
due  jirocess  of  law,  and  without  re- 
quiring tlie  stipulation  ordered  by  act 
of  assembly,  it  will  not  discharge  him 
from  the  original  debt.  Myers  v.  Ul- 
rich.  '  "25 

2.  Upon  the  plea  of  nulla  bona  to  a  ^cire 
facius  against  a  garnishee,  the  jury 
must  find  tlie  specific  goods  in  the 
garnishee's  hands;  a  verdict  finding 
goods  of  a  certain  value  in  the  de- 
fendant's hands,  is  bad.  But  if  they 
find  the  goods,  they  may  also  find  tiieir 
value,  to  save  the  necessity  of  a  special 
inquest.    Crawford  v.  Barry.  481 


ATTORNEY. 

1 .  If  an  attorney  enters  his  appearance 
generally  to  a  suit  against  two  defend- 
ants, one  of  whom  only  is  summoned, 
it  is  a  good  appearance  for  both. 
iV/>  Culloiigh  V.  Guetner.  2  1 4 

2.  The  authority  of  the  defendant's  at 
torney  is  competent  to  restore  an  ac- 
tion after  noji  pros,  without  the  con- 
sent of  his  client.  Reinholclt  v.  Albcrti. 

469 


BAILPIECE. 

Where  the  bail  has  paid  the  debt  due 
by  his  principal,  and  tlie  latter  has 
paid  nothing,  the  court  will  not  at  the 
instance  of  the  principal,  and  against 
the  wish  0/  the  bail,  order  an  r.xone- 
retur  upon  the  l)ailpiece,  before  the 
principal  has  been  taiicn.  Kctland  v. 
Medford.  4V7 

BARGAIN  AND  SALE. 

If  a  bargain  and  sale  )-ccite  a  considera- 
tion of  money,  and  the  jury  find  that 


no  money  was  paid,  this  part  of  tli<^ 
verdict  goes  for  nothing.  No  avcr- 
meiit  can  be  made  against  such  a  rc« 
cital.  It'llt  V.  rrunklhi.  502 

BANK  CHECK. 

'SVr  Pavmknt,  I. 

BANKRUPT. 

See  Evidence,  6.  7. 

.  The  proceedings  of  the  commis- 
sioners of  bankrupt  arcfmn/ied,  with- 
in the  5  1st  section  of  the  act  o{  yijiril 
4,  1800,  when  the  commissioners 
have  proceeded  on  the  commission, 
examined  the  bankrupt,  and  other 
witnesses,  admitted  the  creditors  to 
prove  their  debts,  and  assigned  the 
bankrupt's  estate.  Rugan  v.  West.  263 

.  The  preference  given  by  the  act  of 
March  1,  1799,  to  sureties  in  custom- 
house bonds,  is  not  taken  away  by 
the  bankrupt  act.  Chainjineys  v.  Lyle. 

327 


BARON  AND  FEME. 
See  Evidence,  1 1. 

1 .  The  curtesy  estate  of  the  husband  in 
the  lands  of  the  wife  is  not  forfeited 
to  the  commonwealth  for  the  life  of 
the  husband  by  his  attainder  for  trea- 
son committed  in  her  lifetime  and 
after  issue  born;  but  the  wife's  estate 
is  discharged  from  the  curtesy.  Leu- 
sec  of  Pcnibcrton  v.  Hicks.  1 

2.  The  courts  oi  Pennsylvania  have  no 
authority  to  insist  on  a  provision  for 
the  wife,  when  (he  husband  applies 
for  her  personal  property.  Yohe  v. 
Barnet.  358 

3.  A  deed  of  the  wife's  land  by  the  hus- 
band and  wife,  who  by  a  ceitificate 
indor'^ed  thereon,  appeared  before  a 


INDEX. 


62- 


judge  ofthc  common  pleas,  and  "  ac- 
«  knowledged  the  indenture  to  be 
"  their  act  and  deed,  and  desired  the 
"  same  to  be  recorded,  she  being  of 
"  lull  age  and  by  him  examined 
"  apart,"  is  not  suflicicnt  to  pass 
the  wife's  estate.  Lessee  of  Watson  v. 
Bailey.  470 

4.  A  count,  charging  man  and  wife  upon 
a  joint  assumption,  in  consideration  ol 
money  had  and  received  by  them  to 
the  plaintiff's  use  is  bad.   Grascer  v 
Eckart.  575 


BILL  OF  EXCEPTIONS. 

: .  A  bill  of  exceptions  to  the  charge, 
may  l)c  tendered  at  any  thue  before 
the  jury  have  delivered  their  verdict 
in  open  court.  Jones  v.  The  Insurance 
Com/iany  of  Nor  ill  America.  o8 

2.  A  bill  of  exceptions  does  not  lie  to  the 
opinion  of  the  court,  iii  receiving  or 
rejecting  testimony  upon  a  motion  for 
summary  relief.   Hhortz  v.  (juit^leij. 

222 

.1.  A  bill  of  exceptions  lies  to  the  opi- 
nion of  the  common  pleas,  upon  the 
trial  of  a  feigned  issue  from  the  re- 
gister's court.  VauHunt  v.  Hoilcau.  444 

HILL  OF  EXCHANGE. 

Il  sermn  that  the  acceptor  of  a  forged 
bill  is  l)ound  to  pay  it,  not  upon  the 
principle  tliat  iiis  acceptance  has 
given  a  credit  to  the  l)ill,  l)iit  because 
it  is  his  duty  to  know  the  drawer's 
handwriiini;,  which  he  is  precluded 
from  disputing.  Levy  v.  Jhmk  of  (he 
United  'Slatrn.  27 


HILL  OF  LADING. 

if  an  agent  indebted  to  his  principal 
ships  properly  to  him  on  board  a  ves- 
sel belonging  to  a  third  person,  (al- 
tho»igh  bound  to  contorm  to  tlie 
agcnl'i^orders,)  and  the  captain  signs 


a  bill  of  lading  deliverable  to  the 
principal,  the  property  thereupon 
vesis  in  the  principal,  and  the  agent 
cannot  countermand  or  disturb  the 
shipment.  Summcrl  v.  Elder.  105 


BLOCKADE. 

A  vessel  sails  from  Charleston  to  Cadiz, 
without  any  notice  of  its  being  in  a 
state  of  blockade,  and  wiihhi  a  short 
distance  of  the  pori  is  brought  to  by 
the  blockading  squadron,  and  warn- 
ed not   to    enter   on  account  of  the 
blockade.  The  mate  and  four  hands 
are  taken  out  of  her,   and  an  officer 
and   eight  men    put  on  bourd,   with 
orders  to  stay  by  the  fleet.  Ten  days 
afterwards  the  captain  is  taken  out  of 
her,  and  carried  to  the  adauv..!  of  the 
fleet,  who  says  to  him,   "  We  have 
''  thought  of  setting  you  at   liberty; 
"  and  in  case  we   do,  what  port  will 
"  you  proceed  forr"  The  captain  re- 
plies, "  in  case  I  receive  no  new  in- 
"  structions,    I   shall  follow    my  old 
"  ones."  "  That  I  suppose  will  be  for 
"  Cadiz."  "  Certainly,  unless  I  have 
"  new  orders."  This  is  not  an  afte?n/it 
to  enter,  and  therefore  no  breach  of 
blockade.   Qn.  Whether  any  declara- 
tion of  an  intention  to  enter,  amounts 
to  an  at(e/ii/:t.  Calhoun  v.   T/ic   Insu- 
rance Company  of  Pennsylvania.     293 


BOND. 

Sec  Pleading,  \. 

Where  the  condition  of  a  bond  is  for  the 
payment  of  interest  annually,  and  of 
tin;  piin(,ipal  at  a  distant  day.  the  in- 
terest may  be  recovered  bclore  the 
|)iin(i])al  is  due,  iiy  an  action  of  debt 
on  the  bond.  Sjiurkes  v.  (iarrii^uts. 

152 


COMMISSION. 
A  joint  commission  issued  to  London, 


624 


INDEX 


in  v'hich  the  plaintiff  named  commis- 
sioners, whose  protession  ami  particu- 
lar residence  he  set  out;  and  the  de- 
fendant named  merely  ./.  li.  and  C  D. 
*'  of  London^  The  plaintiff's  com- 
missioners caused  inquiries  to  he 
made  for  those  of  the  defendant,  and 
no  such  persons  beint;  found,  they 
executed  the  commission  tx  fuiric. 
Hvld  that  the  commission  was  avcU 
executed.  Pigo^  v.  Holloivaij.         436 


CONSPIRACY. 

1.  The  law  implies  damage  from  a 
conspiracy  to  accuse  a  person  of  an 
ofience  for  which  he  is  liable  to  in- 
dictment and  removal  from  office. 
GriJ/ith  v.  Ogle.  172 

"2.  It  seems,  that  in  an  action  on  the  case 
in  the  nature  of  a  writ  of  conspiracy, 
it  is  not  necessary  to  declare,  that  the 
conspiracy  was  \\'\\\\o\\i /irobable  cause . 
*'  Falsely  and  maliciously"  is  enough. 

i72 


CONSTITUTION. 

See  Judiciary.    Justice  of  the 
Peace.  Libel. 


CONSUL. 

See  Jurisdiction. 

COSTS. 

See  Amendment,  1. 

1.  Witnesses  subpoenaed  though  not 
examined,  and  examined  though  not 
subpoenaed,  are  entitled  to  payment. 
JJchennevilte  v.  Debenneville.  46 

2.  An  award  of  costs  is  good,  although 
the  principal  sum  reported  by  the  re- 
ferees, would  not  carry  costs  if  found 
by  a  jury.  McLaughlin  \.  Scott.        61 


3.  If  the  plaintifi'  levies  by  execution 
costs  to  which  he  is  not  entitled,  the 
court  will  compel  him  l)y  rule  to  re- 
fund them,  even  after  they  have  been 
distributed  by  the  sheriff".  Harris  v. 
Fortune.  125 

4.  If  a  suit  has  been  carried  on  for  the 
use  of  an  assignee,  the  nominal  plain- 
tiff being  insolvent,  the  court  will 
permit  the  defendant  after  verdict,  to 
suggest  upon  the  docket  the  name 
of  the  assignee,  and  will  rule  him  to 
pay  the  costs.  Canhy  v.  Kidgivay.  496 

5.  In  an  action  of  debt  discontinued  after 
the  first  court  upon  the  defendant's 
agreeing  to  pay  costs,  the  plaintifi"'s 
attorney  is  entitled  tb  the  fee  due  in 
actions  ended  after  the  first  court  and 
before  judgment,  notwithstanding  the 
5th  section  of  the  act  of  March  21, 
1806.  Delaware  Insurance  Cornfiany 
V.  Gilpin.  501 

6.  Jurors  not  drawn  by  lot  for  the  court 
at  which  the  issue  is  tried,  but  drawn 
upon  a  former  occasion,  and  continu- 
ed over,  are  not  entitled  to  pay  from 
the  county,  but  from  the  losing  party. 
Sherer  \.  Hodgson.  535 

7.  The  expense  of  a  view  is  not  charge- 
able to  the  county,  but  must  be  paid 
by  the  losing  party.  53.) 


COSTOMHOUSE  BONDS. 


See  Bankrupt,  2. 


CURTESY. 

The  curtesy  estate  of  the  husband  in 
the  lands  of  the  wife  is  not  forfeited 
to  the  commonwealth  for  the  life  of 
the  husband  by  his  attainder  for  trea- 
son committed  in  her  lifetime  and 
after  issue  born;  but  the  wife's  estate 
is  discharged  from  the  curtesy.  Lch' 
sec  of  Femberton  v.  Hicks.  1 


INDEX. 


62- 


DAMAGE. 

Hee  Nuisance,  2. 

. .  riie  law  implies  damas^e  from  a 
conspiracy  to  accuse  a  person  of  an 
oftence  for  which  he  is  liable  to  in- 
dictment and  removal  from  office. 
Griffith  V.  Oc^lc.  172. 

2.  Qu.  Whether  being  refused  admis- 
sion into  a  church  presbytery,  is  such 
special  danja^e  as  the  law  will  take 
notice  of  McMillan  v.  Birdi.  178 

3.  To  suppoit  an  action  on  the  case  for 
damage  occasioned  by  a  common 
nuisance,  it  is  immaterial  whether 
the  damage  be  immediate  or  conse- 
quential. Hutrfiea  V.  Heiatr.  463 

DEBTS. 

See  Specialty.  Set-off,  I. 

Debts  due  by  a  deceased  person  take 
rank  according  to  their  quality  at  the 
time  of  his  death.   Hcott  v.  licnnmy. 

221 

DEED. 

See  Assignment.  Bakgain  and  Sale, 
2.   Baiion  and  Temk.    I'^videnck,  4. 

DEVISE. 

1.  A  testator  devises  to  his  wife  during 
her  widowhood,  the  front  room  in  his 
farm  house,  a  cellar,  and  the  common 
use  of  the  kitchen,  oven  and  draw- 
well,  lie  also  gives  her,  in  considera- 
tion of  her  sch()oling  and  educating 
the  children,  the  profits  of  his  farm 
until  his  sons  come  of  age  to  possess 
it.  He  then  orders  his  farm  to  be  di- 
vided into  two  paits,  one  of  which  he 
gives  to  one  son,  reserving  a  privi- 
lege of  water  lor  the  other  part, 
which  he  gives  to  another  son,  upon 
their  respectively  coming  of  age,  and 
orders  the;    son   who   takes  a  certain 


part,  to  keep  a  hoiist  and  cow  for  his 
mother,  and  to  c\it  and  lay  firewood 
at  her  door  during  her  widowhood. 
Held  that  the  devises  are  not  in  bar 
of  dower  in  the  farm.  Webb  v.  Evans, 

565 

2.  ^.  devises  all  his  real  estate  to  his  son 
B.  and  his  heirs  lawfully  begotten;  and 
in  case  of  his  death  without  such 
issue,  he  orders  C.  his  executors  and 
administrators  to  sell  the  real  estate 
within  two  years  after  the  son's  death; 
and  he  bequeaths  the  proceeds  there- 
of to  his  brothers  and  sisters  by  name 
and  t/icir  heirs  forever,  or  such  of 
them  as  shall  be  livin'^  at  the  death 
of  the  son,  to  be  divided  between 
them  in  equal  liro[iortions^  share  and 
share  alike.  All  the  brothers  and  lis- 
ters die  leaving  issue,  then  C.  dies, 
and  afterwards  B.  the  son  without 
issue.  Heirs  is  a  word  of  limitation; 
and  none  of  the  brothers  and  sisters 
being  alive  at  the  death  of  B.  the  ob- 
ject of  the  power  to  sell  has  failed, 
their  issue  are  not  entitled,  and  a  sale 
by  the  executors  of  C.  conveys  no 
title.  Lessee  oj'  Smith  v.  FoIiih-U.     546 


DISCONTINUANCE. 

After  an  inquest  has  returned  that  the 
rents  and  profits  will  pay  in  seven 
years,  the  plaintifl'  cannot  discon- 
tinue his  Ji.fa.  and  take  out  a  new 
one,  without  leave  of  the  court. 
M^CuUouifh  V.  (iuetner.  214 


DOMICIL. 

1.  A  will  of  personal  jjroperty  must  I)( 
executed  according  to  liie  law  of  the 
testator's  domicil  at  the  lime  of  his 
death.  If  it  is  void  by  that  law,  it  will 
not  pass  personal  pi-operty  in  a  foreign 
country,  although  it  is  executed  with 
all  the  formality  prescribed  by  the  law 
of  that  country.  Dcscsbatsw  Berc/uier. 

2.  .\  man  h/irima  facie  domiciled  at  the 


'326 


INDEX. 


place    \vhcrc   he  is    resident   at   the 
time  of  his  death.   Guier  v.  O'' Daniel. 

■J.  Domicil  is  a  residence  at  a  particidar 
place  acconipaiucd  witli  an  intention 
to  continue  it  an  unlimited  time.    352 

!■.  A  minor  during  pupilage  cannot  ac- 
quire a  domicil  of  his  own;  his  domi- 
cil therefore  follows  that  of  his  father, 
and  remains  until  he  acquires  an- 
other, which  he  cannot  do  until  he 
becomes  a  person  sui  juris.  352 

DOWER. 

i.  A  testator  devises  to  his  wife,  during 
her  widowhood,  the  front  room  in  his 
farm  house,  a  cellar,  and  the  com- 
mon use  of  the  kitchen,  oven  and 
drawwell;  he  also  gives  her,  in  con- 
sideration of  her  schooling  and  well 
educating  the  children,  the  profits  of 
his  farm  until  his  sons  come  of  age 
to  possess  it.  He  then  orders  his  farm 
to  be  divided  into  two  parts,  one  of 
which  he  gives  to  one  son,  reserving 
a  privilege  of  water  for  the  other 
pail,  which  he  gives  to  another  son, 
upon  their  respectively  coming  of 
age;  and  orders  the  son  who  takes  a 
certain  p^rt,  to  keep  a  horse  and  cow 
for  the  wife,  and  to  cut  and  lay  firewood 
at  her  door  during  her  widowhood. 
Held  that  the  devises  are  not  in  bar 
of  dower  in  the  farm.  Webb  v.  Evans. 

5  65 

;.  At  law  it  is  settled  that  when  tlic 
husband  dcs'i^QS  generally  to  the  Avife, 
the  sauie  cannot  be  averred  to  be  in 
satisfaction  of  dower  unless  it  is  so 
expressed.  But  cfjurty  puts  her  to  her 
election,  where  there  appears  an  evi- 
dent intention  to  bar  her,  where 
dower  would  disappoint  the  v.'ill,  and 
where  the  devises  to  her  and  her 
dower,  are  inconsistent  with  each 
other.  565 

EJECTMENT, 

'SVc  MoHTGAGK. 


EQUITY. 

The  equity  decisions  in  England  be- 
fore tlie  revolution,  arc  of  authority 
in  lliis  state;  and  as  we  have  no  court 
of  chancery,  it  has  been  the  settled 
practice  of  the  supreme  court,  to 
proceed  upon  them.  Ebfrt  v.  H'ood. 

217 


ERROR. 

A  writ  of  error  lies  from  the  supreme 
court  to  a  judgment  rendered  by  the 
common  pleas  upon  a  verdict  in  a 
feigned  issue.    Vansanl  v.   Boilcaii. 

444 


EVIDENCE. 

1 .  A  protest  made  by  the  captain  of  a 
vessel  within  twenty-four  hours  after 
his  arrival  at  his  first  port  where 
both  the  owner  and  insurer  resided, 
and  without  notice  to  the  insurer, 
is  evidence  in  an  action  between 
those  parties,  to  shew  that  an  occur- 
rence at  sea  had  made  a  deviation 
necessary.  Brown  v.  Girard,  40 

2.  In  an  action  of  slander  the  defendant 
may  give  in  evidence  in  mitigation  of 
damages,  that  a  third  person  told 
him  what  he  related.  Kennedy  v.  Gre- 
gonj.  85 

f).  The  return  of  a  deputy  surveyor  is 
merely  firima  faciit  evidence  of  the 
truth  of  the  matter  returned.  Faulkner 
v.  The  Lessee  of  Eddy.  188 

4.  A  deed  is  not  admissible  in  evidence 
until  at  least  a  shadow  of  title  is  shewn 
in  the  grantor.  188 

5.  If  an  original  entry  in  a  shop  book 
is  in  the  handwriting  of  a  clerk,  it 
must  i)e  proved  l)y  him  before  it  can 
be  admitted  in  evidence,  unless  he  is 
dead,  or  out  of  the  power  of  the  court. 
titerrctt  v.  Dull.  234 

6.  A  commission  of  bankruptcy  and  as- 
signment,    are     not   conclusive    evi- 


INDEX. 


627 


dencc  of  the  trading  y.nd  act  of  bank- 
ruptcy, in  an  action  ui"  trover  by  the 
assignees.    Rugan  v.  U^est.  263 

7.  Certified  copies  of  the  proceedings 
by  the  commissioners  of  bankrupt, 
when  finished,  and  filed  in  the  district 
court,  are  /irima  facie  evidence  against 
all  persons,  of  the  commission,  trad- 
ing, and  act  of  bankruptcy.  263 

8.  Upon  an  indictment  for  stealing  a 
bill  obligatory,  evidence  of  the  con- 
tents of  the  instruments  may  be  given, 
without  shewing  notice  to  the  de- 
fendant to  produce  the  original  on  tlic 
trial.    Connnonnveaith  v.  MessiJiger. 

9.  The  sentence  of  a  foreign  court  of 
admiralty,  condemning  property  as 
prize,  is  conclusive,  not  only  as  to  its 
direct  effects,  but  as  to  the  facts  di- 
rectly decided  by  it.  Dniifmey  v.  The 
lunurance   Comfiariij  of  Pcnnsyhmnia. 

299 

10.  The  articles  of  agreement  betMecn 
the  proprietaries  of  Pennsylvania  and 
Maryland,  settling  the  boundaries  of 
the  two  provinces,  are  evidence,  with- 
out being  proved  or  acknowledged 
according  to  the  laws  of  Pennsylvania; 
being  in  the  light  of  a  state  paper 
well  known  to  the  courts  of  justice. 
Leasee  of  Koaa  \.   Cutahatl.  399 

11.  Parol  declarations  of  the  wife  that 
she  executed  a  conveyance  of  her  es- 
tate voluntarily,  and  that  if  it  was 
insufticicnt,  she  would  execute  and 
acknowledge  it  again,  or  do  any  other 
act  to  make  the  deed  good,  are  in- 
admissible to  supply  a  defective  ac- 
kriowlctlgmcnt.  Leaaie  of  ll'ut&on  v. 
Bail.y.  470 

12.  An  executor  who  is  jjlaintin'  in  a 
feigned  issue  to  try  the  validity  of  the 
■will,  is  not  acom|)etent  witness,  being 
liable  for  < osts.    I'drmani  v.  lioileait. 

444 

13.  The  commander  of  a  public  armed 
vessel  which  has  made  a  prize,  is  a 
good  witness  In  a!i  action  by  a  seaman 
against  the  prize  agent,  to  reduce  the 


plaintift's  share  of  prize  money.  Mzir- 
rai^  \.  Wilson.  531 

14.  Query.  Whether  a  certificate  by  the 
accountant  of  the  navy  department, 
under  the  seal  of  that  department,  is 
evidence.  531 

15.  Declarations  made  by  a  party  at  the 
time  of  executing  a  written  agree- 
ment, are  not  evidence,  if  not  com- 
municated to  the  other  party.  IVullace 
V.  Baker.  610 

1 6.  A  subcribing  witness  to  a  warrant  of 
attorney  swore  that  from  his  minutes 
he  found  he  was  at  a  certain  place  on 
a  certain  day,  being  the  day  the  war- 
rant bore  dale,  and  that  upon  reference 
to  the  warrant  he  found  his  name  in 
his  own  handwriting  as  an  attesting 
witness,  and  that  the  seal  appeared 
to  have  been  taken  from  an  engraving 
he  then  and  still  had,  and  from  all 
these  circumstances  he  was  convinced 
that  he  ivas  firesent  and  witnessed  the 
execution  of  the  instrument .  This  is 
sufficient  proof  of  the  warrant  to  go 
to  the  jury.  Pigot  v.  Hotloway.     436 


EXECUTION. 

After  an  inquest  has  returned  that  the 
rents  and  proiits  will  pay  in  seven 
years,  the  plaintiff  cannot  discontinue 
his  f.  fa.  and  take  out  a  new  one, 
without  leave  of  the  court.  M'-Cul- 
lough  V.  Guctner.  214 


EXECUTOR. 
See  EviDKNCE,  12. 

1.  A  jiower  to  y/ and  his  executors  In 
sell,  may  be  executed  by  the  executor 
of  .//'s  executor.  Leasee  of  Umilh  v. 
Folwe/l.  546 

2.  The  bare  appointment  of  an  executor 
IS /irima  facie  evidence  that  the  resi- 
due of  the  personal  estate  undisposed 


62b 


INDEX. 


of  by  tlic  vill.  It.  gnen  to  iurn  I)cncfi- 
cially.   Grasscr  v.  Kckart.  575 

.  'VVlicrc  the  residue  of  a  testator's  per- 
sonal estate  is  not  disposed  of  bv  the 
will,  it  is  always  a  (jucstion  of  inten- 
tion, whether  the  executors  lake  be- 
neficially, or  as  trustees.  5  75 

.  A  testator  orders  all  his  debts  and  fu- 
neral expenses  to  be  paid,  and  gives 
his  wife  700/,  and  the  use  of  his  real 
estate,  initil  his  only  child,  a  son  then 
about  five  years  old,  shall  be  fifteen. 
He  gives  his  son  1  5/.  a  few  specific 
legacies,  and  all  his  real  estate,  and 
then  orders  the  residue  of  his  per- 
sonal estate,  except  a  table  and  two 
stoves,  lo  be  aold  by  his  executors  at 
public  sale,  as  soon  as  may  be  after 
his  death,  to  the  best  advantage,  and 
makes  his  wife  and  two  friends  ex- 
ecutors. They  take  as  trustees  for  the 
next  of  kin.  575 


FEIGNED  ISSUE. 

1.  A  writ  of  error  lies  from  the  supreme 
court  to  a  judgment  of  the  common 
pleas  upon  a  verdict  in  a  feigned 
issue.  Vatisant  v.  Boileaii.  444 

2.  The  court  which  tries  the  feigned 
issue,  and  not  the  register's  court, 
has  the  right  to  order  a  new  trial. 

444 


FOREIGN  SENTENCE. 
See  Evidence,  9. 

FORFEITURE. 

Sec  Curtesy. 

FRAUDS  AND  PERJURIES. 

i.  A  parol  partition  between  tenants  in 
common,  made  by  marking  a  line  of 
division  on  the  ground,  and  followed 


by  a  corresj)oiKiiiig  separate  posses- 
siow,  is  good,  notwithstanding  the 
act  of  frauds  and  pcijuries.  lihcrt  v. 
Wood.  216 

2.  A  parol  gift  of  lands  by  a  father  to 
his  son,  accompanied  with  ])ossession, 
and  followed  by  the  son's  making  im- 
provements on  the  land,  is  valid. 
Lessee  of  Sylcr  v.  Kckart.  378 

3.  A  parol  contract  for  the  sale  of  lands, 
is  good  luuler  the  act  of  frauds  and 
perjuries,  to  support  an  action  for 
damages.  So  a  written  contract  with 
an  agent  who  has  merely  a  parol  au- 
thority. Knving  v.  Tees.  450 


GARNISHEE. 

1.  If  the  garnishee  in  a  foreign  attach- 
ment pay  over  to  the  plaintiil"  the 
debt  attached,  without  being  com- 
pelled by  due  process  of  law,  and 
without  requiring  the  stipulation  or- 
dered by  act  of  assembly,  it  will  not 
discharge  him  from  the  original  debt 
Myers  v.  Urich.  25 

2.  Upon  the  plea  of  nulla  bona  by  a 
garnishee,  the  jury  must  find  the 
specific  goods  in  his  hands.  A  ver- 
dict finding  goods  of  a  certain  value 
in  his  hands  is  bad.  But  if  they  find 
the  goods,  they  may  also  find  their 
value  to  save  the  necessity  of  a  spe- 
cial inquest.   Cranvford  v.  Barry.  48 1 


HABEAS  CORPUS  ACT. 

The  penalty  for  recommitting  a  person 
who  has  been  once  delivered  for  the 
same  cause  on  a  /lab-as  cor/ius,  is 
limited  to  recommitments  for  the 
same  criminal  offence.,  and  is  not  in- 
curred by  taking  the  party  a  second 
time  in  custody  upon  civil  process. 
Jfccker  V.  Jarreft.  374 

IMPROVEMENT. 
1 ,  An  improvement  made  on  lands  not 


INDEX. 


629 


iiurchased  from  the  Indians,  does  not 
Vest  a  title.  Lessee  of  Kyle  v.  White. 

246 

i.  An  improvement  and  settlement  on 
lands  purchu3«=;d  from  the  Indians  in 
November  1768,  made  between  that 
date  and  the  opening  of  the  land  office 
on  the  3d  April  1769,  give  no  pre- 
ference to  the  settler  against  a  des- 
criptive application  entered  in  the 
land  office  on  the  day  it  opened.  Les- 
see of  Buchanan  v.  Maclure.  385 


INDICTMENT. 

1 .  An  indictment  for  stealing  two  ten 
dollar  notes  of  the  firesident,  directors 
and  comfiany  of  the  bank  of  the  United 
Statesy  is  bad.  They  should  be  laid  to 
be  promissory  notes  for  the  payment 
of  money.  The  Cotnmonnvealth  v.  Hoy- 
cr.  201 

2.  Query.,  Whether  an  indictment  is  bad 
for  laying  bank  notes,  as  the  goods 
and  chattels  of  the  prosecutor.      201 


INNUENDO. 

The  office  of  an  innuendo  is  to  elucidate 
•words,  by  connecting  them  with  the 
subject  to  which  they  refer,  and  aver- 
ring a  meaning  not  inconsistent  with 
or  contradictory  to  them,  but  it  can- 
not alter  their  nature.  ShciJ/'cr  V.  Kiiit- 
zer.  537 

INSOLVENT. 

1.  A  petitioner  for  relief  under  the  in- 
solvent art  of  'llh  April,  17y8,  must 
exhibit  to  the  court  a  statement  in 
ivritinfc  of  his  losses,  and  tiie  means 
whereby  he  became  insolvent.  Jiu- 
ker'a  case.  462 

.;'.  A  debtor  who  has  no  property  what- 
ever, is  nevertheless  entitled  to  the 
benefit  of  the  insolvent  laws.         462 

3.  The  IRth  section  of  the  insolvent  law 
of  April  4th,  171)8,  is  intrnded  to  re- 

VOL.    I.  4    T. 


lieve  all  persons  in  actual  confine- 
ment, whether  inhabitants  of  this 
state  or  not;  but  a  nonresident  debt- 
or must  apply  for  his  discharge  to 
the  court  by  whose  process  he  is 
confined.  Croxall's  case. 


INSPECTORS  OF  THE  PRISON 
See  Quo  Warranto. 

INSURANCE. 
See  Set-off,  3.  EvIDE^'CE,  9. 

1.  In  an  action  on  a  policy  of  insurance, 
wherein  the  plaintiff  declares  for  a 
total  loss,  and  pro^■es  a  captiu'c  and 
condemnation  of  the  property  which 
he  has  never  abandoned;  the  jury 
may  estimate  the  value  of  the  sfies  re- 
C2i/ie7-andi,  deduct  it  from  the  whole 
sum  insured,  and  find  the  remainder 
as  a  partial  loss.  IVatson  v.  The  Iji- 
surance  Comjiany  of  J\''orth  America. 

47 

2.  If  a  policy  underwritten  in  Philadel- 
l)hia  contains  a  warranty  of  American 
propctrty,  "  to  be  proved  if  required 
"  in  this  city  and  not  elsewhere,"  the 
assured  is  entitled  to  vindicate  the 
truth  of  his  warranty  not  only  against 
a  foreign  condenuialion  as  enemies, 
jiroperty,  but  against  a  condemnation 
for  any  act  or  omission  of  his  agents 
during  the  voyage,  by  which  the  neu- 
trality is  alleged  to  have  been  for- 
feited. Calhoun  w  The  Insurarice  Co7n- 

fiany  of  Pennsylvania.  293 

.■).  An  agreement  by  a  lender  on  respon- 
dentia, "•  to  be  liable  to  average  in  the 
"  same  manner  as  underwriters  on  a 
*'  policy  f)f  inM:ranrc  according;  to  the 
"  usages  and  piaclices  of  the  city  of 
*'  Philadeliihia,"  does  not  entitle  the 
borrnwer  to  calculate  an  average  loss 
iipon  the  whole  aniovmt  of  the  money 
loaned  and  the  marine  intci'esl,  but 
merely  on  the  cost  and  charges  ol 
the  goods  on  board,  and  the  prcmitim 


630 


INDEX. 


of  insiinincc.    Gibson  \.  The  Philadel- 
phia Insurance  Cojufianij.  405 

4.  Upon  an  insurance  on  t^oocls,  the  un- 
derwi'ilcrs  arc  not  liable  for  fieit^ht 
paid  by  ibe  owner  of  the  gootls  dur- 
ing the  voyage.  405 

5.  The  assignee  of  a  policy  of  insurance, 
takes  it  subject  to  all  defalcations  to 
■which  it  was  liable  before  the  assign- 
ment; and  therefore  in  a  suit  by  the 
assignee  the  insurers  may  set  oft"  a 
debt  due  by  the  assmed  at  the  time 
of  the  assignment,  though  it  be  an 
open  policy,  and  the  claim  for  a  par- 
tial loss.  Roussct  V.  The  In.suranrr 
ComJ:amj  of  A'orth  America.  429 

6.  Upon  an  insurance  "  at  and  from"  the 
warranty  of  seaworthiness  must  be 
referred  to  the  commencement  of  the 
risk;  and  if  between  that  time  and  the 
sailing  of  the  vessel,  she  becomes  un- 
fit ibr  sea  without  the  fault  of  the 
assured,  and  is  afterwards  lost,  the 
assured  may  recover.  Garriguen  v. 
Coxe.  592 

7.  A  policy  on  vessel  contained  a  clause 
that  if  "  after  a  regular  survey  she 
'<  should  be  condemned  for  being  un- 
"  sound  or  rotten,  the  underwriters 
"  should  not  be  bound  to  pay  their 
*'  subset  iptions."  The  survey  and  con- 
demnation, to  come  within  the  clause, 
must  shew  unsoundness  from  decay, 
and  not  from  accident,  as  the  eating 
of  rats.  592 

3.  A  leak  occasioned  by  rats  without 
the  neglect  of  the  captain,  is  a  peril 
within  the  policy.  592 


INTEREST. 

I.  Where  the  condition  of  a  bond  is  for 
the  payment  of  interest  annually,  and 
the  principid  at  a  distant  day,  the  in- 
terest may  be  recovered  before  the 
principal  is  due,  in  an  action  of  debt 
on  the  bond.  But  no  interest  can  be 
recovered  upon  such  interest.  S/iarku 
V.  Xiarrigues.  165 


2.  An  administrator  is  chargeable  willi 
interest  aher  twelve  months  from  the 
intesiate's  death,  where  he  has  been 
guilty  of  neglect  in  not  putting  out 
the  money,  or  where  he  has  used  it 
himself;  and  it  lies  upon  him  to  shew 
what  has  been  done  \\ith  it.  i'o^  v. 
U'Ucocks.         '  194 

3.  It  is  now  a  settled  rule  that  interest 
is  recoverable  for  money  lent  and  ad- 
vanced; and  this  rule  applies  to  loans 
made  when  the  law  was  held  to  be 
otherwise.   Lessee  of  Dihvorth  v.  Sin- 


dcriifig. 


488 


4.  A  trustee  is  entitled  to  interest  for 
advances  made  to  supply  the  defici- 
encies of  the  trust  fund,  although  the 
interest  and  advances  nearly  absorb 
the  equitable  interest.  488 


INTESTATE. 
See  Debts. 


JOINTENANCY. 

A  mortgage  executed  by  two  out  of 
three  jointenants  is  a  severance  of  the 
jointenancy.  Lessee  of  Simpson,  v,  Am- 
iiiOTis.  175 


JUDGMENT. 

1.  If  a  verdict  be  found  for  plaintiff',  and 
doling  the  pendency  of  a  motion  in  ar- 
rest of  judgnicnt  the  plaintiff'  dies, 
judgment  may  be  entered  as  of  a 
term  after  the  verdict  when  he  was 
alive.  Griffith  v.  Ogle.  172 

2.  Judgments  obtained  before  a  justice 
of  the  peace,  when  filed  in  the  com- 
mon pleas  or  made  known  to  ad- 
ministrators, must  be  paid  pro  rata 
with  judgments  in  courts  of  record. 
Scott  V.  Rcnnsay.  221 

3.  Judgment  may  be  arrested  for  an  ob- 
jection on  the  face  of  the  record, 
though  it  was  not  assigned  at  the  time 


INDEX. 


631 


of  filing  the  motion,  or  of  entering  an 
appeal.  Grasscr  v.  Eckart.  575 


JUDICIARY. 

The  supreme  court  has  a  right  to  pro- 
nounce an  act  of  the  legislature  to  he 
unconstitutional.  Emerick  v.  Harris. 

416 


JURISDICTION. 

A  state  court  has  no  jurisdiction  of  a 
suit  against  a  consul;  and  whenever 
this  defect  of  jurisdiction  is  suggest- 
ed, the  court  will  quash  the  proceed- 
ings; it  is  not  necessary  that  i\  should 
be  by  plea  before  general  imparlance. 
Mannhardt  v.  Soderslroni.  138 


JUROR. 

See  Verdict. 

Jurors  not  drawn  by  lot  for  the  present 
court,  but  drawn  upon  a  Ibrnier  oc- 
casion and  continued  over,  are  not 
enlilled  lo  i)ay  from  tlic  county,  l)Ut 
from  the  losing  party.  H/icrcr  v.  Ilodg- 
aon.  535 


JURY. 

.  It  is  not  necessary  to  entitle  a  party  to 
a  special  jury,  that  the  utlorney  sliould 
ccriify  that  il  is  not  intended  for  delay. 
LcHStc  of  Nrjf  V .  Xrff.  350 

.  There  is  no  time  limited  within  which 
a  party  must  apply  for  a  special  jury. 


JUSTICE  OF  THE  I'EACE. 

8ec  Appeal,  1. 

.  A  justice  of  the  peace  cannot  enter 
judgment  upon  a  warrant  of  attorney. 
He  must  proceed  I)y  warrant  in  tlie 


nature  of  a  summons  or  capias.  Alber- 
tij  V.  Dawson.  105 

2.  The  record  of  a  judgment  by  a  jus- 
tice of  the  peace  still  remains  before 
him,  and  may  be  the  foundation  of  a 
scire  facias,  after  a  transcript  has  been 
filed  in  the  common  pleas.  Drian  v. 
Suijder.  381 

3.  The  act  of  19th  .^Jiril  1794,  called  the 
20/.  law,  giving  jurisdiction  to  justices 
of  the  peace  in  certain  cases  not  ex- 
ceeding 20/.  is  not  unconstitutional. 
E771  crick  v.  Harris.  416 

LANDLORD  AND  TENANT. 

1.  Notice  to  quit  at  the  end  of  a  certain 
year,  is  not  waived  by  tbe  landlord's 
permitting  the  tenant  to  remain  in 
possesion  an  entire  year  after  the  ex- 
piration of  the  notice.  Boggs  v.  Black. 

333 

2.  The  notice  to  quit  required  by  the 
landlord  and  tenant  law,  must  be  given 
tliree  months  before  the  end  of  the 
term.  Broivn  v.  I'uJihorn.  334 


LAND  OFFICE. 

1.  Tlic  act  of  22d  .'1/iril  1794,  which 
prohibits  the  land  oflice  from  receiving 
applications  for  certain  lands  after  the 
date,  does  not  prevent  an  alteration  of 
the  names  of  former  applicants,  lundk- 
nrr  v.  The  Lessee  of  Eddy.  1 88 

2.  An  appeal  does  not  lie  from  the  board 
of  property  to  the  common  pleas,  al- 
ihougli  an  act  of  assemljly  directs  the 
officers  of  that  board  to  do  certain 
tliin^;s  in  case  of  an  ajjpeal.  The  only 
way  of  coiUestiiig  tlieir  decision,  is  by 
an  action  between  the  parties  in  the 
ordin.iry  way.  Tlir  Conimomuralih  v. 
Cochran ,  "24 


LARCENY. 

Under  the  act  of  5lh  J/iril  1790,  whicli 
declares  that  larceny  of  bills  ohligato- 


532 


INDEX. 


ry  shall  be  punished  in  the  same  man- 
ner as  larceny  of  any  goods  or  chat- 
tels, tl)c  t'elonious  taking,  Sec.  of  one 
bill  obligatory,  is  punishable  as  a  lar- 
ceny. The  Commonwealth  v.  JMcsshi- 
ger.  273 

LIBEL. 

The  act  of  assembly  of  16th  March  1809, 
which  enacts  that  no  person  shall  be 
subject  to  prosecution  by  indictment 
for  the  publication  of  papers  exami- 
ning the  proceedings  of  the  legisla- 
ture or  any  brancli  of  the  govenmient, 
or  for  investigating  the  official  conduct 
of  officers  or  men  in  pubhc  capacity, 
is  not  unconstitutional.  Commonwealth 
V.  Duane.  60 1 

LIEN. 
5'ee  Trustee,  I. 

LIMITATIONS,  ACT  OF. 

A  debt  which  is  barred  by  the  act  of  li- 
mitations, is  not  revived  by  a  clause  in 
a  will,  ordering  all  the  testator's  just 
debts  to  be  paid.  Smith  v.  Porter.  209 


MISTAKE. 
See  Agreement,  1. 

MORTGAGE. 

See  Join  TENANCY. 

The  assignee  of  the  administrators  of  a 
mortgagee  may  maintain  an  ejectment 
in  his  own  name.  Lesnee  of  Simpson 
V.  Ammons.  175 

NEW  TRIAL. 

See  Practice,  1 1. 

!.  The  day  on  wliich  the  verdict  is  given, 
is  computed  as  one  of  the  four  days 


which  are  allowed  to  move  for  a  new 

trial.  Lane  v.  Shreiner.  292 

2.  Qiicfre  whether  in  any  civil  case  the 
court  will  grant  a  new  trial  where 
there  has  been  no  motion  within  the 
four  days.  Ewing  v.  Tecs.  450 


NOTICE  TO  QUIT. 

1 .  Notice  to  quit  at  the  end  of  a  certaui' 
year,  is  not  waived  by  the  landlord';* 
permitting  the  tenant  to  remain  in 
possession  an  entire  year  after  the  ex- 
piration of  the  notice.  Boggs  v.  Black. 

333 

2.  The  notice  to  quit,  required  by  the 
landlord  and  tenant  law,  must  be 
given  three  months  before  the  end  of 
the  term.  Brown  v.  Vanhorn.         334 


NUISANCE. 

,  To  support  an  action  on  the  case  for 
damage  occasioned  by  a  common  nui- 
sance, it  is  not  necessary  that  the  da- 
mage sustained  should  have  been  di- 
rect, it  is  enough  if  it  was  consequen- 
tial. Hughes  V.  Hciser.  463 

.  The  plaintiff  declared  that  he  had 
prepared  rafts,  with  intent  to  navigate 
them  down  a  river,  which  was  a  pub- 
lic highway;  and  that  he  did  navigate 
them,  until  he  came  to  a  dam  erected 
by  the  defendant,  by  which  he  was 
prevented  from  passing  down  the  ri- 
ver with  his  rafts.  This  is  a  sufficient 
special  damage  to  support  an  action. 

ib. 


OFFICE. 

One  who  has  an  authority  to  appoint  to 
a  pul)lic  office,  cannot  appoint  himself. 
The  Commonwealth  v.  Douglass.      77 


OFFICIAL  BOND. 

The  party  who;  first  brings  suit  upon  art 
official  bond  is  entitled  to  priority  »f 


INDEX. 


65S 


payment,  although  he  is  prevented 
from  obtaining  judgment  by  an  order 
to  stay  proceedings,  upon  the  defend- 
ant's paying  the  amount  of  the  bond 
into  court.  All  subsequent  suitors  to 
the  same  term  are  entitled  t^ro  rata; 
but  if  instead  of  suing  they  apply  to 
the  court  to  come  in  under  the  first 
suit,  priority  of  application  will  entitle 
them  to  priority  of  payment.  M^Kcaii 
V.  a/iannon.  370 


ORPHAN'S  COURT. 

1.  The  orphan's  court  may  if  necessary 
direct  an  issue,  to  settle  a  disputed 
fact.   Yo/ie  v.  Barnct.  358 

2.  A.  obtain^  judgment  against  B.  his 
son  in  law,  and  then  dies  intestate 
seised  of  real  estate,  and  leaving  seve- 
ral children,  among  whom  is  the  wife 
of  H.  The  real  estate  is  divided  into 
fewer  parts  than  there  are  children, 
and  they  are  allotted  accordingly  un- 
der the  direction  of  the  law,  that  a 
bond  shall  be  given  by  those  who  take 
the  land  to  the  other  children,  li.'s 
wife  among  the  number,  for  their  res- 
pective purparts.  13.  is  insolvent,  and 
liis  debt  to  A.  unpaid.  The  orphan's 
court  may  order  B.'s  debt  to  be  de- 
ducted from  the  amount  of  tiie  bond 
for  his  wife's  part.  ih. 


PAROL  AGRl'lEMENT. 
Srr  Ehauds  and  Pkhjihiks,  I.  2.  .". 

PARTNEHS. 

I.  In  order  to  rcacli  the  estate  of  a  de- 
ceased partner,  an  action  for  a  part- 
nership debt  lies  against  liis  execuior 
if  the  surviving  partner  be  a  rerlifica- 
icd  bankrupt  before  action  brought. 
JMTlg  V.  Kcjijiclf.  1~3 

One  partner  cannot  maintain  assump- 
sit against  the  otlier,  for  the  proceeds 
of   a    partnership   adventure,  unless 


they  have  settled  their  accounts  and 
struck   a  balance.   Ozeas  v.  Johnson. 

191 


PAYMENT. 

Sr-e  Pleading,  1.2. 

The  entry  of  a  check  as  cash,  made  in 
the  private  bankbook  of  the  holder,  is 
equivalent  to  payment  ;  and  if  the 
check  is  a  forgery,  of  which  the  hold- 
er was  ignorant,  the  bank  must  sup- 
port the  loss.  Levy  v.  The  Bank  of 
the  United  States.  27 


PENALTY. 
See  Pleading,  I. 

1 .  Where  a  penalty  has  for  its  end  to  in- 
sure the  performance  of  the  principal 
obligation,  it  does  not  destroy  it.  Canal 
Comfmnxj  v.  Sansom.  70 

2.  A  penalty  inflicted  by  an  act  of  as- 
sembly for  the  doing  a  particular 
thing,  implies  a  prohibition  of  that 
thing.  Mitchell  v.  Smith.  110 


PLEADING. 

1.  Where  a  defendant  pleads  payment  to 
an  action  of  debt  on  a  bond,  and  at- 
tempts to  defeat  the  bond  by  giving 
eviflence  of  fraud,  or  want  of  consifle- 
ration,  but  makes  no  set-off,  the  plea 
is  not  under  the  defalcation  act,  but  is 
allowed  under  the  equity  powers  of 
the  court,  to  give  the  defendant  an 
equitable  defence;  and  therefore  if  he 
fails,  the  judgUKiit  shall  be  entered  for 
the  penalty.  S/iarku  v.  (iarrit^urs.  152 

2.  Under  the  plea  of  payment  to  a  scire 
facias  to  revive  a  judgment,  the  de- 
fendant may  give  in  evidence  that 
when  he  executed  the  bond  and  war- 
rant, upon  which  the  judgment  was 
confessed,  the   plaintifT  promised  to 


634. 


INDEX. 


cancel  it  upon  an  event  which  has  oc- 
curred since  the  judgment.  Ilartzctl 
V.  Rtiss.  289 

3.  It  seems,  that  in  an  action  on  the  case 
in  tl\e  nature  of  u  writ  of  conspiracy, 
it  is  not  necessary  to  declare  that  tlie 
conspiracy  was  without  probable  cause; 
*'  falsely  and  maliciously,  is  enough." 
Griffith  V.  Ogle.  172 

4.  A  count  charginp^  man  and  wife  upon 
a  joint  assumption,  in  consideration  of 
money  had  and  received  by  them  to 
the  plaintiff's  use,  is  bad.  Grosser  v. 
Eckart.  575 

5.  In  slander  the  declaration  is  good, 
though  it  charge  that  the  defendant 
spoke  certain  words  in  substaiice  as 
folloivs,  &c.    Kennedy  v.  JLoivry.     393 


POLICY. 

See  Set-off,  2.  3. 

POUNDAGE. 

If  the  sheriff,  with  the  money  raised  by 
an  execution  upon  land,  pays  off  mort- 
gages or  judgments  which  had  a  lien 
prior  to  the  judgment  under  which  the 
sale  was  made,  he  is  entitled  to  pound- 
age upon  the  amount  so  paid,  tliougli 
it  should  exceed  the  real  debt  in  the 
execution.  Petty  v.  Beauvarlet.         07 

PRACTICE. 

1.  A  preference  must  be  asked  for  the 
commonwealth  causes,  upon  tlie  first 
day  of  the  jury  period.  Commonivcalth 
V.  Pascalis.  57 

2.  The  court  will  not  permit  a  rule  of  re- 
ference to  be  struck  off,  after  there 
has  been  a  meeting  of  the  referees, 
and  the  parties  have  proceeded  before 
them  in  the  controversy;  notwithstand- 
ing since  the  meeting,  one  of  the  par- 
ties is  dead,  and  his  representatives 


have  been  substituted.  Ruston  v.  Dun- 

woody.  42 

3.  A  cause  in  which  the  commonwealth 
IS  interested,  is  not  entitled  to  a  pre- 
ference, unless  it  is  asked  by  the  com- 
monwealth. Turnbull  v.  T/ic  Comvioti- 
wealth.  45 

4.  A  rule  to  shew  cause  of  action  is  well 
served  upon  the  plaintiff's  attorney. 
Hulcheson  v.  Johnson.  59 

5.  The  affidavit  of  a  party  may  lay  a 
ground  for  a  rule  to  shew  cause,  but  it 
cannot  be  heard  upon  the  argument  on 
the  rule.  Hoarv.  Mulvey.  145 

6.  If  to  debt  on  a  bond  the  defendant 
pleads  payment,  and  attempts  to  de- 
feat the  bond  by  giving  evidence  of 
fraud,  want  of  consideration,  &c.  but 
fails,  and  makes  no  set-off,  judgment 
shall  be  entered  for  the  penalty,  with 
leave  to  take  out  execution  in  the  first 
instance,  for  as  much  as  was  due  at  the 
commencement  of  the  action.  For 
payments  accruing  afterwards,  the 
plaintiff  must  move  the  court  for  exe- 
cution, when  the  defendant  may  make 
any  defence  other  than  that  which  has 
been  tried,  and  arising  subsequent  to 
the  suit.   -S/iarks  V  Garrigues.         152 

7.  It  is  not  necessary  to  entitle  a  party 
to  a  special  jury,  that  the  attorney 
should  certify  that  it  is  not  intended 
for  delay.  Lessee  ofMff\.  JVeff.  350. 

8.  If  the  judgment  of  a  justice  of  the 
peace  is  affirmed  in  the  common  pleas, 
for  want  of  exceptions  in  time  agree- 
ably to  the  rules  of  that  court,  the  su- 
preme court  will  not  hear  objections 
to  it.  Dubosq  V.  The  Guardians  of  the 
Poor.  415 

9.  Judgment  may  be  arrested  for  an  er- 
ror on  the  face  of  the  record,  although 
it  was  not  assigned  at  the  time  of  filing 
the  motion,  or  of  entering  an  appeal. 
Grassrr  v.  Eckart.  575 

10.  The  court  will  hear  more  than  two 
counsel  of  a  side,  where  there  are 
other  parties  than  those  on  the  record, 
who  have  agreed  to  be  bound  by  the 
court's  decision.  Frazer  v.  Tunis.  255. 


INDEX. 


635 


11.  The  rule  of  court  requiring  ten  days' 
notice  in  im-king  before  the  next  term, 
of  an  intended  motion  for  a  new  trial 
in  a  cause  tried  at  nisi  /inusy  applies 
to  causes  tried  at  nisi  firiua  in  the 
county  of  P/iiiadti/i/iia.  Henry  v.  Ken- 
nedy. 45  8 

12.  A  variance  between  the  writ  and 
count  is  inuiuiterial  by  the  practice 
\n  Pennsyhmnia.  Jennings  w  Cox.  588 


PRIVILEGE. 

A  party  while  attending  an  appeal  from 
the  court  of  another  county  to  the 
supreme  court,  is  privileged  from 
the  service  of  a  summons.  Miles  v. 
M'-CulLough.  77 


PROSECUTION. 

An  act  of  assembly  directs  that  "  from 
"  and  after  the  passing  of  the  act  no 
"  person  shall  be  subject  to  prosecu- 
"  tion  by  indictment,"  for  a  particular 
ofleiice.  Held  that  it  puts  an  end  to  a 
prosecution  commenced  and  carried 
to  conviction  before  the  passing  of  tlie 
act,  but  in  which  no  judgment  had 
been  pronounced.  Cojnnionnveali/i  v. 
Tiiianr.  601 


PROTEST. 
•Vtr  Evidence,  1. 

QUO  WARRANTO. 

An  act  of  assembly  vests  tlic  appoint- 
ment of  inspectors  of  tlic  prison  in 
the  mayor  and  two  aldermen  of  the 
rity,  and  two  justices  of  the  county  of 
Philudiifihiuy  and  directs  it  to  be  ex- 
ercised on  a  certain  day.  At)  api)oint- 
ment  n)adc  in  a  chindestine  maiuier, 
alter  a  refusal  by  the  mayor  to  make 
known  to  certain  aldermen  and  jus- 
•  ices  the  hour  and  place  at  which  such 


appointment  would  be  made,  is  not 
such  an  exercise  of  the  mayor's  dis- 
cretion as  the  law  will  warrant,  and 
the  court  will  give  leave  to  file  an  in- 
formation in  the  nature  of  a  quo  ivar- 
ranto  against  the  inspectors  so  ap- 
pointed. The  Covimonwealtfi  v.  Doug- 
lass. 77 


REFEREES. 
See  Practice,  2.  Costs,  2. 

1.  A  report  of  referees  may  without 
consent  of  parties  be  sentsback  to  the 
same  referees,  for  the  purpose  of  cor- 
recting informality.  Lessee  of  Snyder 
v.  Hoffman.  43 

2.  Exceptions  to  a  report  of  referees 
must  point  out  some  plain  mistake  in 
fact  oi-  in  law,  otherwise  the  court 
will  not  investigate  the  merits  of  the 
report.  Lower  Dublin  School  v.  Paul. 

59 

3.  Part  of  a  report  of  referees  may  be 
confirmed  and  the  residue  set  aside. 
Rut  the  court  cannot  strike  out  a  part. 
IVoglam  V.  Burnes,  109 

4.  To  entitle  a  party  to  demand  of  refe- 
rees an  allowance  of  time  to  produce 
testimony,  he  must  shew  them  what 
it  is,  why  he  is  not  able  then  to  pro- 
duce it,  and  that  he  expects  to  obtain 
it  in  a  reasonable  time.  Latinur  v. 
Pidgc.  458 

5.  If  the  oath  directed  by  the  act  of  2l3t 
March,  1806,  to  be  administered  to 
referees,  is  dispensed  with  by  the  par- 
lies, there  is  no  necessity  that  their 
award  sliotild  be  under  seal.  Cra/iam 
V.  Iluviilcon.  '161 


REGULATION  OE  LOTS. 

The  regulation  of  a  lot  by  regulators 
under  the  act  of  '.)th  IVIarcli,  1771, 
from  which  no  appeal  is  entered  to 
the  next  common  pleas,  is  conclu- 
sive AS  to  the  foundations  and  partv 


65(5 


mDEX. 


■walls  of  buildings  erected  confovm- 
ably  thereto,  but  not  so  us  to  the  linos 
of  the  lot  on  which  there  arc  no  build- 
ings.  (Jodshatl  V.  Aluriam.  352 


RELATION. 

1.  A  survey  under  a  renewed  warrant 
issued  from  the  iand  office  of  Mary- 
Jand  in  1762,  if  the  land  is  the  same 
called  for  by  a  warrant  before  4th 
July,  1760,  relates  to  the  time  of  the 
original  warrant.  Lessee  of  Boss  v. 
CutshaLL  399 

2.  An  assignment  to  a  trustee  for  the 
benefit  of  all  the  creditors  of  the  as- 
signor, not  made  known  to  the  trus- 
tee until  four  days  after  its  execution, 
when  he  accepts,  takes  effect  from  its 
date.  The  acceptance  of  the  trustee 
is  presumed  until  his  refusal  ap- 
pears.  IVilt  V  Franklin.  502 

RENEWED  WARRANT. 
See  Survey,  6. 

RESPONDENTIA. 


See  Insurance,  3. 


SALE. 
See  Sheriff,  1. 

SCIRE  FACIAS. 

The  record  of  a  judgment  by  a  justice 
of  the  peace  still  remains  before  him, 
and  may  be  the  foundation  of  a. saVfyn- 
cias  after  a  transcript  has  been  filed 
in  the  common  pleas,  Drurn  v.  Sny- 
der. 381 

SET-OFF. 

See  Orphan's  Court,  2. 

1.  A.  is  indebted  to  B.  and  C.  partners  in 
trade,  who  issue  a  foreign  attachment 
a<;ainst  his  effects  in  the  hands  of  D. 


.'/f/rr  the  death  of  B.  and  C.  the  exe- 
cutors of  C.  who  was  surviving  part- 
ner obtain  judgment  against  the  de- 
fendant and  the  garnishee.  B.  and  C 
were  the  indorsers  of  a  note  which 
was  discounted  by  D.  and  which  fell 
due  after  their  death,  and  was  pro- 
tested for  nonpayment.  The  debt  to 
D.  by  B.  and  ('.  cannot  be  set  off 
against  the  debt  due  by  D.  as  gar- 
nishee of  A.  to  C.'s  executors.  A.'s 
debt  upon  the  death  of  B.  and  C.  be- 
came vested  in  their  creditors  gene- 
rally, whose  rights  canil6t  be  changed 
by  any  subsequent  proceedings  be- 
tween the  executors  and  garnishee. 
CraJHond  v.  The  Bank  of  the  United 
States.  64 

.  The  assignee  of  a  policy  of  insurance, 
takes  it  subject  to  all  defalcations  to 
which  it  Avas  liable  before  the  assign- 
ment. Roiisset  V.  The  Insurance  Com- 
pany of  J^orth  America.  429 

.  In  a  suit  by  the  assignee  of  a  policy 
of  insurance,  the  insurers  may  set  off 
a  debt  due  by  the  assignor  at  the  time 
of  effecting  the  policy  though  it  be 
an  open  policy  and  the  claim  for  a 
partial  loss.  429 


SHERIFF. 

1.  The  sheriff  cannot  make  a  lumping 
sale  of  distinct  parcels  of  property 
which  he  has  taken  in  execution.  He 
should  sell  them  distinctly.  Ronvteyv. 
Bronvn.  61 

2.  If  the  sheriff  with  the  money  raised 
by  an  execution  on  land,  pays  off 
mortgages  or  judgments  Avhich  had  a 
lien  prior  to  the  judgment  under 
which  the  sale  was  made,  he  is  enti- 
tled to  poundage  upon  the  amount  so 
paid,  though  it  exceed  the  real  debt  in 
the  execution.  Petry  v.  Bcauvarlet. 

97 

3.  In  an  action  against  the  shenff  for  the 
misconduct  of  his  officer  in  the  exe- 
cution gf  A  writ,  it  is  not  necessary  to 


INDEX. 


537 


shew  a  particular  warrant  to  the  offi- 
cer, this  is  nccessury  only  in  the  case 
of  a  bailifl";  but  in  Penrisylvania  there 
are  no  bailiffs,  their  place  being  sup- 
plied by  deputies  whose  authority  is 
suflicientiy  shewn,  by  proof  of  a  ge- 
neral privity  with  the  sheriff'.  Ha- 
zard V.  larael.  240 

■i.  The  sheriff" is  answerable  for  the  mis- 
conduct of  his  deputy,  whether  he  re- 
cognises and  adopts  his  acts  or  not. 

240 

5.  A  jury  may  give  exemplary  damages 
against  a  sheriff  for  the  misconduct 
of  his  deputy.  240 

6.  If  a  deputy  sheriff"  enters  the  house 
of  an  administrator  to  look  for  goods 
of  the  intestate,  and  afterwards  pro- 
ceeds to  levy  upon  the  goods  of  the 
administrator  from  whom  nothing  is 
due,  he  is  a  trespasser   ah   initio. 

240 

7.  Where  the  sherifflevies  upon  goods 
in  the  defendant's  possession,  the 
court  will  not  stay  proceedings  and 
direct  an  issue  to  try  the  properly, 
upon  an  allegation  that  the  goods  be- 
long to  a  third  person.  Insurance  Com- 
/lany  of  Pennsylvania  v.  Ketlancl.  499 


SLANDER. 

1 .  In  an  action  of  slander,  the  defendant 
may  give  in  evidence,  in  mitigation 
of  damages,  that  a  third  person  told 
him  what  he  related.  Kennedy  v.  Gre- 


f^ory. 


85 


2.  In  slander  the  declaration  is  good, 
though  it  charge  that  the  defendant 
spoke  certain  words  in  mthHtanee  an 
folloiva  cJ'c.  Kennrdu  v.    Lov^ry.      393 

■>.  To  call  a  clergyman  a  dnmkard  is 
actionable  M'-Miltan  v.  Jiirrh.        17K 

4.  Words  spoken  I)y  the  (kfendaiit  of 
and  to  the  pliiintiff  lieforc  a  clnirrh 
presbytery,  in  I  lie  course  of  his  de- 
fence against  charges  there  brought 
against  hin)  by  the  pli^inliff')  ^re  not 
actionable,  if  he  did  not  wander  de- 

VoL.   I.  4  M 


signed! y  from  the  point  in  question, 
for  the  purpose  of  uttering  them. 

178 

5 .  To  say  of  a  man  "  he  has  sworn  false" 
is  not  actionable,  the  colloquium  be- 
ing of  an  extrajudicial  affidavit  before 
a  justice  of  the  peace.  Shaffer  \'.  Kint- 
zer.  5  37 

6.  Words  laid  in  the  second  person  are 
supported  by  evidence  that  they  were 
spoken  in  the  third.  Tracy  v.  Ilarkins. 

395 


SPECIALTY. 

A  claim  against  an  intestate's  estate  for 
damages  on  account  of  the  breach  of 
articles  of  agreement  under  seal,  is  a 
debt  Ijy  specialty  within  the  meaning 
of  the  14th  section  of  the  act  of 
19th    April  1794,  Fruzer  y.   Tunis. 

254 


SURETY. 

The  surety  in  a  customhouse  bond  is 
entitled  to  priority  of  payment  out  of 
a  bankrui)t's  estate  for  both  principal 
and  interest  of  the  sum  paid  by  him 
to  the  United  States.  ChanijinciiH  v. 
Lisle.  327 


SURETY  OF  GOOD  BEHAVIOUR. 

1.  The  supreme  court  has  no  authority 
to  moderate  or  remit  a  recognisance 
of  good  behaviour  that  is  forfeited  by 
an  act  out  of  court.  Commonwealth  v. 
Daviex.  97 

2.  It  is  most  agreeable  to  the  sjjirit  of 
the  constitution,  to  adopt  it  as  a  gene- 
ral rule  not  to  demand  surety  of 
goofl  behaviour  before  conviction. 
Coni/mmwealth  v.  DuaJie.  102 


SURVEY. 

I.  It  Is  not  essential  to  the  validity  of  a 
survey  of  a  bodv  of  lands,  that   the 


G38 


INDEX. 


lines  of  each  tract  should  be  marked 
on  the  ground.  It  is  sufficient  if  the 
surveyor  has  marked  lines  enoutjh  to 
identify  the  particular  tracts.  Woods 
V.  Ingersoll.  146 

2.  The  proviso  in  the  9th  section  of  the 
act  of  3d  April  1792,  which  excuses  a 
settlement  in  case  of  prevention  by 
the  enemy,  also  excuses  a  survey. 
Lessee  of  Hazard  \.  Loiury.  166 

".  If  a  survey  has  been  duly  made  under 
lej^al  authority,  and  the  land  surveyed 
remains  open  to  purchasers,  a  war- 
rant comini^  aftcrivurds  to  the  hands 
of  the  deputy,  may  be  applied  by  him 
to  the  survey  already  made,  without 
runnincj  and  marking  the  lines  anew. 
Lessee  of  JSblihea  v,  Plummcr.      227 

4.  A  survey  on  what  is  called  a  nhifcd 
location^  is  good  against  a  person  who 
had  notice  of  it  before  the  com- 
mencement of  his  title,  even  tliough 
the  survey  was  not  returned.  Lessee 
of  Kyle  v.  White.  246 

5.  It  is  no  objection  to  a  survey  made 
before  the  year  1767,  on  lands  pur- 
chased from  the  Indians  in  1754, 
tha;  5  62  acres  were  surveyed  upon 
two  warrants  for  100  acres  each.  246 

6.  A  survey  under  a  renewed  warrant 
issued  from  the  land  office  of  Mary- 
land in  1762,  if  the  land  surveyed  is 
the  same  called  for  by  a  w-arrant  be- 

frie  4th  of  July  1760,  relates  to  the 
time  of  the  original  warrant,  and  is 
protected  by  the  agreement  between 
the  proprietaries.  Lessee  of  Ross  v. 
Cut  shall.  '  399 


SURVEYOR. 
See  Evidence,  3. 

Unless  the  surveyor  marks  all  the  lines 
of  i-ach  tract,  in  a  body  of  lands,  he  is 
noi  entitled  to  the  full  compensation 
given  by  law.     Woods  v.    Jn^ersoll. 

146 


TIME. 

l.The  record  of  the  proceedings  upon 
an  appeal  from  the  circuit  court, 
which  by  law  is  directed  to  be  filed 
bifore  the  next  tern),  is  in  time  if 
filed  liefore  the  court  meets  on  the 
first  day  of  the  next  term.  Vanlcar  v. 
Vanlear.  76 

2.  Two  years  after  the  pacification  by 
General  Wayne's  treaty  with  the  In- 
dians, is  a  reasonable  time  for  mak- 
ing a  settlement,  which  has  been 
prevented  by  the  enemy.  Lessee  of 

Hazard  \.  Lowry.  166 

/ 

3.  The   day  on    which   the    verdict    is 

given,  is  computed  as  one  of  the 
foiri  days  which  are  allowed  to  move 
for  a  new  trial.  Latie  v.  Shreincr.  292 


TRESPASS. 

If  a  deputy  sheriff  enters  the  house  of 
an  administrator  to  look  for  goods  of 
the  intestate,  and  afterwards  proceeds 
to  levy  upon  the  goods  of  the  admin- 
istrator from  whom  nothing  is  due, 
he  is  a  trespasser  ab  initio.  Hazard  v. 
Israel.  240 


TRUST.  I 

A  trust  estate  in  Pennsylvania  descends 
in  case  of  intestacy  to  the  heir  at 
common  law.  Lessee  ofJenks  v.  Baek- 
house.  9 1 


TRUSTEE. 

5ce  Executor,  3.  4. 

1  A.  as  agent  for  B.  and  to  secure  a 
debt  due  to  him,  takes  a  mortgage  of 
real  estate  in  his  own  name  from  the 
debtor,  and  then  obtains  a  release 
of  the  equity  of  redemption.  A.  re- 
tains the  title  deeds,  and  B.  receives 
the  rents  and  profits.  Afterwards  A. 
lends  his  notes  to  B.  and  finally  takes 


INDEX. 


639 


them  up,  shortly  after  which  B.  is 
declured  a  bankrupt.  ^'5  assignees 
cannot  recover  the  premises  from  j1. 
until  they  reimburse  him  the  amount 
so  paid  for  B.  Lessee  of  Frazer  v. 
Hallowell.  126 

2.  A  trustee  is  entitled  to  interest  upon 
advances  for  the  use  oi  cestui  i/ue trust 
to  supply  the  deficiency  of  the  fund. 
He  is  also  entitled  to  an  allowance 
for  depreciated  paper  money,  paid 
him  during  the  war  for  rent  of  the 
trust  estate,  and  for  expenses  incurred 
in  erecting  proper  and  necessary 
buildings  upon  it,  although  the  cestui 
que  trust  w  as  not  consulted.  Lessee  of 
Dilxvorth  v.  Sviderling.  488 

VENIRE  DE  NOVO. 

1.  On  the  reversal  of  a  judgment  of  the 
common  pleas  upon  a  bill  of  excep- 
tions to  evidence,  the  supreme  court 
may  award  a  ve?nre  de  novo.  Uterrett 
V.  Bull.  238 

2.  Entire  damages  assessed  upon  sever- 
al counts  in  slander,  one  of  which  is 
bad.  Judgment  reversed  and  venire 
dc  novo  awarded.   Shaffer  v.  Kintzer. 

537 

VERDICT. 
If  a  juror  is  struck  from  the  special 


jury  list,  and  then  sworn  as  a  tales- 
man with  the  knowledge  of  the  party 
who  struck  him  off,  he  cannot  on 
that  account  object  to  the  verdict. 
Jordan  v,  J\Ieredith.  27 


VIEW. 

See  Costs,  7. 

WILL 

See  ExKcuTOR,  4, 

A  will  of  personal  property  must  be 
executed  according  to  the  law  of  the 
testator's  domicil  at  the  time  of  his 
death.  Desesbats  v.  Berquier.         336 

WITNESS. 

See  Costs,  1.    Evidence,  16. 

A  party  may  call  as  many  witnesses  as 
he  thinks  necessary  to  make  out  his 
case;  the  court  will  not  interfere,  un- 
less he  is  guilty  of  oppression.  Deben- 
nevitle  V.  Debenneville.  46 

WORDS. 
See  Slander,  3.  4.  .t. 


ilfi  r^.^L'T^l^RM  REGIONAL  LIBRARY  FACILITY 


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